Gibboney v. Gibboney
| Decision Date | 31 October 1878 |
| Citation | 2 Bradw. 322,2 Ill.App. 322 |
| Parties | ALBERT G. GIBBONEYv.ROBERT H. GIBBONEY. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon JOSEPH E. GARY, Judge, presiding.
Mr. GEO. L. THATCHER and Mr. F. C. RUSSELL, for appellant; that there is nothing in the record to impeach the validity of the judgment, and it must be presumed to have warranted the action of the court below, cited Iglehart v. Chicago M. & F. Ins. Co. 35 Ill. 514; Osgood v. Blackmore, 59 Ill. 261; Bush v. Hanson, 70 Ill. 480; Roundy v. Hunt, 24 Ill. 600; Waterman v. Caton, 55 Ill. 94; Hall v. Jones, 32 Ill. 38.
The court had no jurisdiction over the case for any purpose, after the term at which final judgment was entered: Co. Litt. Lib. 3, 360; 3 Blackstone's Com. 406; 2 Chitty's Pr. 335; Cook v. Wood, 24 Ill. 295; Messervey v. Beckwith, 41 Ill. 452; McKindley v. Buck, 43 Ill. 488; Fix v. Quinn, 75 Ill. 232; Coursen v. Hixon, 78 Ill. 339; Denton v. Noyes, 6 Johns. 296.
Mr. A. T. GALT, for appellee; that it will be presumed the court below decided correctly in vacating the judgment, unless the contrary appears, cited Casey v. Harvey, 14 Ill. 45; I. & St. L. R. R. Co. v. Miller, 62 Ill. 468; St. L. & S. R'y Co. v. Wheelis, 72 Ill. 538; Gardner et al. v. Russell, 78 Ill. 292.
As far as the record shows, the judgment was entered without a warrant of attorney, and is therefore void: White v. Jones, 38 Ill. 160; Chase v. Dana, 44 Ill. 262; Burwell v. Orr et al. 84 Ill. 465.
The note and warrant of attorney should appear in this record: Durham v. Brown, 24 Ill. 94; Waterman v. Caton, 55 Ill. 94.
The rule that courts will not vacate a judgment at a subsequent term does not apply to judgments entered by confession: Lake v. Cook, 15 Ill. 353; Hall v. Jones, 32 Ill. 38; Wyman v. Yeomans, 84 Ill. 403; Burwell v. Orr et al. 84 Ill. 465.
On the 29th day of January, 1878, the appellant filed his declaration in the Superior Court of Cook County, against the appellee, counting specially on a promissory note, adding the common counts.
At the same time the appellee, by Robert S. Hill, his attorney, also appeared in open court and filed a warrant of attorney, executed by the appellee, and a cognovit confessing judgment in favor of the appellant for the sum of sixteen hundred and five dollars, with costs. The court thereupon entered the following order of judgment: “Therefore, it is considered by the court that the plaintiff do have and recover of and from the defendant, his said damages of sixteen hundred and five dollars, in form as aforesaid, by the said defendant confessed, together with costs.”
This order was entered by the court at its January term, 1878. Afterwards, on the 9th day of April, 1878, the same being one of the days of the April term of said court, on motion of the appellee, without any evidence or showing of any kind, the court vacated the judgment so entered at the January term, two terms of the court having intervened, and dismissed the suit. This was excepted to by the appellant, who prayed an appeal to this court, and assigns for error the ruling of the court below in vacating the judgment and dismissing the suit.
This being a judgment by confession by virtue of a warrant of attorney, and without actual notice to the appellee, it would be competent for the court, upon a proper showing, to so far vacate such judgment as to permit the appellee to defend against the same, to permit an issue to be made up and tried by a jury, as to whether upon the merits of the case he has a...
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