Insurance Co. of Vallay of Virginia v. Barley's Adm'r

• Decision Date: 18 February 1863
• Citation: 57 Va. 363
• Parties: INSURANCE COMPANY OF THE VALLEY OF VIRGINIA v. BARLEY'S Adm'r.
• Court: Virginia Supreme Court

57 Va. 363

INSURANCE COMPANY OF THE VALLEY OF VIRGINIA v. BARLEY'S Adm'r.

Supreme Court of Appeals of Virginia.

February 18, 1863

1. As actions at law in the county courts are cognizable only at the quarterly terms, so motions to set aside any of the proceedings in the office in such actions are cognizable only at a quarterly term. And therefore the " " preceding vacation" referred to in the Code ch. 171, § 51, p. 715, means in its application to such cases, the interval between the quarterly terms of the court.

2. A power of attorney to confess a judgment may be executed before the action is brought.

3. A judgment may be confessed either in court or in the clerk's office, by an attorney in fact, though the attorney is not a lawyer.

4. When a statute changing the common law is repealed, the common law is restored to its former state.

On the 21st day of January 1857 the Insurance Company of the Valley of Virginia sued out from the clerk's office of the County court of Frederick, a summons in debt against John W Barley and L. E. Swartzwelder, for $571.00, with interest and $2.63 costs of protest. On the same day these defendants executed a power of attorney by which they authorized William L. Bent to confess a judgment for them in a suit pending in the clerk's office of the County court of Frederick, for the amount of the debt, interest and costs of protest. And still on the same day the attorney did confess the judgment and filed the power with the papers in the office.

On the 13th of February Barley gave notice to the Insurance Company that on the first day of the next March term of the County court of Frederick, he should move the court to set aside the judgment confessed in the office, for, among other reasons the following: 1st. Because the power of attorney was executed before the suit was brought. 2d. Because William L. Bent was not an attorney at law, and an attorney in fact cannot confess judgment for his principal. 3d. Because if an attorney in fact could confess judgment in open court, only the defendant himself can confess a judgment in the clerk's office.

The Insurance Company appeared at the March term of the court, and made defence; and the motion was continued by consent to the next June term.

At the June term the Insurance Company filed a plea of estoppel to the first ground of objection stated by Barley; to the allowance of which he excepted. On the hearing of the motion, the plaintiff offered to introduce a witness to prove that the power of attorney under which the judgment was confessed, was executed before the suit was brought. But the court refused to permit the plaintiff to examine the witness for that purpose: and he again excepted.

It appeared, upon the hearing of the motion, that William L. Bent, at the time he made the confession of judgment, was not and never had been an attorney at law. That he produced the power of attorney to the clerk of the court, and confessed the judgment under it. That there was no proof before the clerk, of the execution of the power; but on the trial of the motion it was admitted that it was executed by Barley and Swartzwelder on the day of its date; and it was filed by the clerk with the papers.

The court refused to set aside the judgment; and the plaintiff again excepted; and applied to the Circuit court of Frederick county for a supersedeas, which was accorded. And at the June term of the court for 1859, the suit having been revived in the name of Barley's administrator, the Circuit court reversed the judgment of the County court, and set aside the original judgment. And thereupon the Insurance Company obtained from a judge of this court a supersedeas to the judgment of the Circuit court.

Byrd, for the appellant:

The county court of each county is in respect of all its terms, monthly and quarterly, a unit under the constitution and laws of Virginia, and at the former it has the same general jurisdiction, in respect to the trial and determination of motions, that it has at the latter; except as to that allowed by the 5th section of chapter 167, p. 640 of the Code of Virginia, which has no relation to or bearing upon this case. It is therefore respectfully submitted whether under the terms of the 51st section of chapter 171, p. 353, of said Code, pursuant to which it is professed to have been issued, the notice of the 13th of February was not too late to authorize on any ground whatever, the exercise of the authority conferred by that section upon the courts of this commonwealth.

Assuming for the purposes of the argument, contrary to whet we allege to have been the fact, viz: that the power of attorney was executed before the institution of their suit against John W. Barley and L. E. Swartzwelder in said County court, we have to remark:

That the right of parties to make and accept confessions of judgment, and thereby to terminate litigation between them, contra-distinguished from the legal means of making its exercise effectual, is not necessarily dependent upon the existence of any express legal provision authorizing or conferring it, but is one of a fundamental character, resting upon general principles, which inheres in the members of the social body, under our system of jurisprudence, as an inevitable incident to the acquisition and ownership of property, and the free power of managing, controlling and disposing thereof, subject only to such limitations or restrictions as may be at any time expressly imposed by law; and that it may be exercised in any form or mode, which, under existing legal principles or provisions, may be effectual, except so far as directly inhibited by legal enactment. In other words, that it is a right inherent in the members of society, as an inevitable incident to the proprietary system recognized and upheld by our laws, and is not one which depends for its existence upon any special legal enactment--just as does the right of any individual to admit and liquidate the amount of his indebtedness to another by the execution of his bond to that other, or otherwise. In either case the effectual and beneficial exercise of such right depends, more or less upon the means which the law may provide in aid thereof.

That, therefore, the effect of the passage of the 41st section of chapter 171, page 651 of Code of Virginia was not to confer a new right, but to provide an additional mode or means for the practical and effectual exercise of one pre-existent, by imposing in general and unqualified terms upon the several clerks of the various courts of original jurisdiction in the commonwealth, the duty of entering of record in vacation, such confessions of judgment as might be made and accepted by parties in their respective offices, to " be as final and valid as if entered in court on the day of such confession, except merely that the court shall have such control over" the same " as is given by the last section" --the 51st of said chapter 171.

That said right, then, to confess a judgment, being one of a fundamental character, and said 41st section having thus, in general and unqualified terms, provided the means of its effectual exercise before the clerk in his office, the question results, whether, in respect of that mode of exercising said right upon the assumption that said power was executed before action brought, there was, on the said 21st of January, 1857, when the confession of judgment in question in this case was made and entered, any binding and existing provision of law, which, in consequence of its having been so executed, rendered it " void," or so impaired its validity that it was inoperative " to support or authorize a judgment to be confessed."

That to sustain the affirmation of the issue involved in this question, certain former acts to be found, respectively, in sections 106 of chapter 128, page 512, and in section 12 of chapter 76, page 270, of 1st vol. Rev. Code of 1819, are referred to and relied on by the appellee, notwithstanding they were not merely wholly pretermitted in the revisal of 1849, but also directly repealed thereby.

[See section 1 of chapter 216, p. 800 of Code of Va.]

But to obviate this it is insisted, that " the repeal of one statute which repealed a former statute does not revive the first statute; " and therefore it is argued by way of submission, that the mere failure to re-enact the law which has been in force from 1794, does not revive a law which was obsolete, and which was not re-enacted because it was thought unnecessary to prevent a mode of proceeding which had been out of use for more than one hundred years," & c.

To this we reply:

I. That it does not meet the question, because there was not only a failure to re-enact said former acts upon the adoption of the Code of 1850; but, in addition, they were directly repealed thereby.

[See sec. 1 of chap. 216.]

II. That the rule, that the repeal of a repealing statute, does not revive the original statute, was prescribed by statute, and it is submitted, has alwas been deemed to be confined in its operation to statutory laws.

III. That a simple but conclusive test, as to whether said old acts were not repealed by the adoption of said Code of 1850, may be found in the inquiry, whether a prosecution could now be maintained under that of them, to be found in 12th section of chapter 76, p. 270 1st Rev. Code of 1819.

IV. That the failure to re-enact said former acts, did not proceed from the causes, or either of them, suggested by appellee's counsel; and that to suppose it did, would necessarily stultify the revisors who prepared it, and the legislature which adopted said Code of 1849; but from the deliberate intention to abrogate and repeal them in accordance with a change in the policy of Virginia legislation in reference...