Information Buying Co. v. Miller
| Decision Date | 13 November 1931 |
| Docket Number | 8362. |
| Parties | INFORMATION BUYING CO. v. MILLER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
At common law, "judgment by confession" was one entered where defendant, instead of entering plea, confessed action, or withdrew plea and confessed action.
Confession of judgment is substitute for verdict and presupposes filing of suit (Civ. Code 1910, § 5954).
Debtor's agreement to confess judgment in behalf of creditor, where made several months prior to institution of suit held not to authorize entry of judgment of confession (Civ. Code 1910, § 5954).
Doctrine that one who seeks equity must do equity held inapplicable to prevent one from setting aside void judgment entered against him by confession (Civ. Code 1910, § 4521).
1. The practice of confessing judgment does not owe its origin to any statute of this state; but it exists by virtue of our statute of February 25, 1784, which adopted the principles of the common law of England, which were in use in the Province of Georgia on May 14, 1776, and which were not inconsistent with the Constitution, laws, and form of government established in this state at the time of the adopting act.
(a) At common law a judgment by confession was entered for the plaintiff in a case where the defendant, instead of entering a plea, confessed the action, or at any time before trial withdrew his plea and confessed the action.
(b) The confession of judgment was well known to the common law which recognized two kinds of judgments by confession, the one a judgment by cognovit actionem, and the other by confession relicta verificatione.
(c) In this state there can be no confession of judgment except in an action and after the same is brought. No confession of judgment can be entered unless the cause has been regularly sued out and docketed as in other cases.
(d) A confession of judgment is the substitute for a verdict, and no such confession can be made until a suit is filed.
(e) An agreement by a debtor to confess judgment in behalf of his creditor, which was made months prior to the institution of a suit, did not authorize the entering of a judgment of confession in a suit afterwards instituted.
(f) An entry in the words, "And it is so ordered," by the trial judge, made upon a paper in which the debtor agrees to judgment against him in favor of a third person for and in behalf of various creditors of the debtor, does not amount to the entry of a confession of judgment; and a judgment so attempted to be rendered is null and void.
2. The doctrine that one who seeks equity must do equity is not applicable under the facts of this case, as its application would deny to the petitioner all relief sought by him.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Action by L. O. Miller against the Information Buying Company. Judgment was entered overruling demurrer to the petition, and defendant brings error.
Affirmed.
R. R Jackson, of Atlanta, for plaintiff in error.
W. B Knight, of Atlanta, for defendant in error.
L. O. Miller filed his petition against the Information Buying Company, alleging this case: On February 27, 1930, said company filed in the municipal court of Atlanta what purports to be a confession of judgment, as follows:
This instrument was executed in December, 1929, in the office of the defendant's attorney. At that time there was no suit on file by the defendant against petitioner. The amounts specified in said instrument represent loans made by the parties therein named to petitioner; in which loans the various parties named contracted for and received more than 8 per cent. interest, and were not qualified under the Small Loan Act of August 17, 1920 (Laws 1920, p. 215). At no time did petitioner sell to any of the parties named in said instrument any salary which was completely earned. Some time in December, 1929, the attorney for the defendant told petitioner to sign what he stated to be a judgment for money loaned to petitioner by said parties with the amounts set out in said instrument. He did not inform petitioner and petitioner did not agree that he ever converted any moneys or salaries that belonged to any of said parties. The attorney for defendant charged petitioner $25 as attorney's fees. On February 27, 1930, defendant's attorney filed in the municipal court of Atlanta a suit for the sum total mentioned in said instrument, with said instrument attached. In 1930 petitioner filed his petition in bankruptcy, and listed therein each of the parties mentioned in said instrument, with the amounts due each as set out therein. Each of said amounts is subject to discharge in bankruptcy. The defendant is threatening to sue out a garnishment on said judgment, which is void; and it will run a series of garnishments in order to obtain funds sufficient to satisfy said void judgment. Petitioner will have to defend each of said garnishment suits. He has not yet obtained a discharge in bankruptcy, so as to plead the same as a discharge from said debts against the various parties named in said instrument. He is without remedy at law, and has to apply to a court of equity to set aside said judgment which shows on its face to be void. He prays that the court set aside said judgment upon the grounds herein set out; that the defendant be enjoined from further proceedings in garnishment on said judgment; that the action in the municipal court be stayed until petitioner has obtained his discharge in bankruptcy from said debts, or until further order; that the defendant be required to produce the notes given to said parties; and that the court cancel them as void.
The defendant demurred on the grounds that the petition does not set forth a cause of action clearly, fully, and distinctly, that there is no equity therein, and that plaintiff is seeking equity without proposing to do equity. There were various grounds of special demurrer. The judge overruled the demurrer grounds, and the defendant excepted.
1. The practice of confessing judgment by a defendant after an action is brought was established by immemorial usage, and existed at the common law. Hicks v. Ayer, 5 Ga. 298. So far as our investigation discloses, this practice came into the jurisprudence of this state by the act of February 25, 1784, which adopted the common law of England of force and binding on the inhabitants of the province of Georgia on May 14, 1776, so far as they were not contrary to the Constitution, laws, and form of government established in this state at the date of the passage of said act. Prince's Dig. 1821, p. 310; Prince's Dig. 1837, p 570; Cobb's Digest, p. 721. This practice of confessing judgment by a defendant has been recognized by the statutes of this state since 1792, and by all of the Codes of Georgia from the first to the last. By section 5 of the Act of December 18, 1792, which was denominated "An act to revise, amend and consolidate the several judiciary acts of this State," it was provided that "no confession of judgment shall be hereafter entered up, unless said confession be made under proclamation, in open court, and where the justice of the same shall appear to the satisfaction of the judge, or justices of the said court." Watkins' Dig. p. 482. By section 27 of the Judiciary Act of 1799 it was provided that "no confession of judgment shall hereafter be entered up, but in the County where the defendant or defendants may reside, or unless the cause hath been regularly sued out and docketed in the usual way as in other cases, nor until such cause be called in order by the Court for trial." Cobb's Dig. p. 495. The makers of the Code of 1863 codified the law upon this subject as follows: "No confession of judgment shall be entered up but in the county where the defendant resided at the commencement of the action, except expressly provided for by law, nor unless the cause has been regularly sued out and docketed as in other cases." Section 3518. The same provision and in identical language appeared in all subsequent Codes. It is found in the Civil Code of 1910, section 5954. It will thus appear that the practice of confessing judgment does not owe its origin to any statute of this state. This practice exists by virtue of our statute of February 25, 1784, which adopted the common law of England, which was in force and binding upon the inhabitants of the province of Georgia on May 14, 1776, and which was then in use in the Province of Georgia, and not inconsistent with the Constitution, laws, and form of government established in this state at the time of the adopting act. The...
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Pre-litigation Contractual Waivers of the Right to a Jury Trial Are Unenforceable Under Georgia Law - E. Michelle Robinson
...was one made in an action after it was begun, and not a confession made before the action was commenced. Information Buying Co. v. Miller, 173 Ga. 786, 791, 161 S.E. 617, 620 (1931). The confession "amounts to no more than an admission of indebtedness, and an agreement to take judgment ther......