Iglehart v. Marine

• Citation: 35 Ill. 514,1864 WL 3083
• Parties: NICHOLAS P. IGLEHARTv.CHICAGO MARINE AND FIRE INSURANCE COMPANY.
• Decision Date: 30 April 1864
• Court: Supreme Court of Illinois

35 Ill. 514

1864 WL 3083 (Ill.)

NICHOLAS P. IGLEHART

v.CHICAGO MARINE AND FIRE INSURANCE COMPANY.

Supreme Court of Illinois.

April Term, 1864.

ERROR to Circuit Court of Cook County.

Judgment in this case was, on May 4, 1860, confessed in open court against Iglehart for $2,100.10 and costs, upon two promissory notes with warrants of attorney thereto attached, the first dated January 7, 1860, for $1,490.25, payable to defendant in error or order ten days after date with twelve per cent. interest; and the second of the same date for $500, payable to defendant in error ninety days after date.

The two notes above described were declared upon in one special count, wherein after alleging their execution and describing them as above, it was stated that defendant became liable to pay to the plaintiff the said sum of money mentioned in the said note, and being so liable, undertook and promised to pay the same according to the tenor and effect of the said note; and it was set up as a breach, that said defendant had not paid said sum of money, nor any portion thereof, but wholly refused and neglected so to do.

The record contained a recital of the coming of the defendant by J. W. Westcott, his attorney in fact; the filing by him of his warrant of attorney; and that its execution was duly proved; and the rendition of judgment in the ordinary form.

The assignments of error are sufficiently stated in the opinion.

Arrington & Dent, for plaintiff in error.Scammon, McCagg & Fuller, for defendant in error.

WALKER, C. J.

This judgment was confessed in open court, and the presumptions are in favor of the regularity of all the proceedings. According to the rules of practice, it was necessary that proof should have been made of the execution of the warrant of attorney before the judgment was confessed. And the evidence of that fact need not be preserved in the record, as it should when a judgment is confessed in vacation before the clerk. In the latter case it must appear in the record, but in the former it will be presumed to have been done, unless it appears to have been omitted. There is, therefore, no force in the objection, that it does not appear in the record, that the execution of the power of attorney under which this judgment was confessed had been proved.

It is likewise insisted, that it was error for the court to consolidate the two causes of action, and the confession of one judgment on both, under the several powers of attorney. A court of...