Jarrett v. Sippely

• Decision Date: 03 June 1913
• Citation: 157 S.W. 975,175 Mo.App. 197
• Parties: JAMES JARRETT, Respondent, v. L. M. SIPPELY et al., Appellants
• Court: Missouri Court of Appeals

157 S.W. 975

175 Mo.App. 197

JAMES JARRETT, Respondent, v. L. M. SIPPELY et al., Appellants

Court of Appeals of Missouri, St. Louis

June 3, 1913

May 5 1913, Argued and Submitted

Appeal from Pike Circuit Court.--Hon. B. H. Dyer, Judge.

Judgment affirmed.

D. A Ball and J. E. Pew for appellants.

(1) Authority given under the power of attorney as is set out in the note said to have been executed by the defendants must be strictly construed. Any departure therefrom deprives the court attempting to render judgment of any jurisdiction and renders its acts a nullity. Bank v. White, 220 Mo 717; Spence v. Emerine, 21 N.W. 866; Weber v. Powers, 72 N.W. 1070; Machine Co. v. Radcliffe, 137 U.S. 287; Grubbs v. Blum, 62 Tex. 426; 23 Cyc. 705. (2) The note said to have been executed by defendants, in the body of which is inserted the power of attorney, does not authorize a confession of judgment to the plaintiff. The note is payable to "A. H. Warren or bearer," but the record shows the following indorsement on back of the note: "Nov. 20, 1905, for value received pay to James Jarrett or order. A. H. Warren." The power of attorney does not authorize confession of judgment to anyone A. H. Warren might designate. Spencer v. Emerine, 21 N.E. 866. (3) The pretended judgment by the clerk of the circuit court of Adams county, Illinois, is not a judgment by confession as is authorized by the power of attorney, said to have been executed by defendants, for the reason that the said pretended judgment and record show that proof was offered and heard as to the execution of the note and power of attorney. Cushman v. Welsh, 19 Ohio 536; Weber v. Powers, 72 N.E. 1070; Bank v. White, 220 Mo. 717. The power of attorney said to have been executed by defendants did not authorize the attorney to waive the right of appeal. Therefore said attorney exceeded his authority under said power of attorney and therefore deprived the court of jurisdiction. (4) There can be no question but that the note and power of attorney, said to have been executed by defendants, were made, according to indorsements on the note and the evidence of W. H. Sippely, and L. M. Sippely, in Missouri, therefore a Missouri contract, and should be construed by the laws of Missouri. Hartman v. Railroad, 39 Mo.App. 88; Insurance Co. v. Simons, 52 Mo.App. 357. (5) The defendants offered to prove all and every statement contained in their answer. Under the adjudications in Missouri it is permissable to show in a suit on a judgment from another State that the court which gave the judgment declared on had acquired no jurisdiction over the defendant, and consequently the alleged judgment was no judgment. Barlow v. Steel, 65 Mo. 611; Marx v. Foneer, 51 Mo. 69; Eager v. Stover, 59 Mo. 87; Nopton v. Leaton, 71 Mo. 358; Bradley v. Welch, 100 Mo. 258; Weller Mfg. Co. v. Eaton, 81 Mo.App. 657; Hamill v. Talbot, 71 Mo.App. 22; Gibson v. Insurance Co., 10 N.E. 729; Anthony v. Masters, 62 N.E. 505; Pond v. Simons, 45 N.E. 48; Weber v. Powers, 72 N.E. 1070; 2 Black on Judgments, sec. 903.

Pearson & Pearson for respondent.

(1) Fraud, deceit and misrepresentation practiced in and about the procurement of the execution and delivery of the note sued on, after the same has been reduced to a judgment, in a suit on that judgment, constitutes no defense, and evidence thereof in such a suit on the judgment is inadmissible. Hamilton v. McLean, 139 Mo. 678; Bates v. Hamilton, 144 Mo. 1; Fears v. Riley, 148 Mo. 49; Lewis v. Williams, Admr., 54 Mo. 200; Payne v. Oshea, 84 Mo. 129; Murphy v. DeFranc, 105 Mo. 53; Stave Co. v. Butler Co., 121 Mo. 614; Geiwitz v. Landis, 124 Mo.App. 1; Cross v. Gould, 134 Mo.App. 585. (2) The judgment here sued on rendered by the clerk of the circuit court of Adams county, Illinois, in vacation is a valid judgment in the State of Illinois. Sec. 66, R. S. Illinois 1893, Sec. 88, chap. 110, Hurd's R. S. of Ill. Revision 1912; Keith v. Kellogg, 97 Ill. 147; Thomas v. Muellor, 106 Ill. 26; Kellogg v. Keith, 4 Ill.App. 386; Durham v. Brown, 25 Ill. 93; Roundy v. Hunt, 24 Ill. 599; Towle v. Gonter, 5 Ill.App. 409; Conkling v. Ridgly, 112 Ill. 36; Oppenheimer v. Giershafer, 54 Ill.App. 38. (3) The judgment sued on shows upon its face that it was a judgment by confession--nothing more, nothing less. Waugh v. Corchorn, 11 Mo. 367. (4) Judgments on confession on warrant of attorney, if valid in State were taken, are recognized and treated as valid in this State under the clause of the Federal Constitution which requires the courts of each State to give full faith and credits to judgments of sister States. Vennum v. Mertens, 119 Mo.App. 461; Crim v. Crim, 162 Mo. 554; Randolph v. Keiler, 21 Mo. 557; Harness v. Green, Admr., 19 Mo. 323; Barney v. White, 46 Mo. 139. (5) Appellants contend that the note sued on is a Missouri contract and should be construed by Missouri laws instead of the laws of the State of Illinois. Appellants are wrong in this contention. The note sued on is dated at Chicago, Ill., made payable at the Colonial Trust & Savings Bank, Chicago, Ill., to A. H. Warren or bearer, and for value received. This makes it an Illinois contract controllable by the laws of that State. Bank v. Cooper, 85 Mo.App. 383; Trower Bros. v. Hamilton, 179 Mo. 205; Vennum v. Mertens, 119 Mo.App. 461; Clark v. Porter, 90 Mo.App. 143; Johnson v. Machine Co., 144 Mo.App. 436.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

This is an action on a judgment rendered in vacation by the clerk of the circuit court of Adams county, in the State of Illinois. The note upon which that judgment was rendered is as follows:

"$ 150 Chicago, Ill., Nov. 1, 1905.

"On or before Feb. 1, 1906, after date, for value received, I, we, or either of us, promise to pay A. H. Warren, or bearer one hundred and fifty dollars, at the Colonial Trust & Savings Bank, Chicago, Illinois, with interest at 7 per cent per annum from date until paid.

"And to secure the payment of said amount, I hereby authorize irrevocably any attorney of any court of record to appear for me, in such court in term time or vacation, at any time hereafter and confess judgment, without process, for such amount as may appear to be unpaid thereon, including a fifteen per cent attorney fee, together with costs and all other expenses, and to waive and release all errors which may intervene in any such proceedings and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof. The interest on this note is payable quarterly, and the entire note to be due when there is interest due and unpaid. All delinquent interest is to draw seven per cent for the time delinquent. The makers and endorsers hereof waive demand, notice and protest. L. M. SIPPELY,

"W. H. SIPPELY."

Under date of November 20, 1905, the payee of the note indorsed it for value to James Jarrett, the respondent here, plaintiff below.

It appears by the certified copy of the judgment that on the 20th of December, 1906, a declaration or narrative, as it is called, with affidavit and note attached, as well as a cognovit, were filed with the clerk of the circuit court in vacation. The narrative sets out the execution of the note, its indorsement for value and before it was due to respondent and the failure of the makers, appellants here, to pay. The cognovit entered in the cause and before the clerk is in the usual form of a cognovit actionem, setting up that the makers of the note appeared before the clerk by their attorney, waived service of process, admitted the execution of the note, saying that they cannot deny the action of plaintiff, nor but that they the defendants, undertook and promised in manner and form as set out, nor but that the plaintiff has sustained damages on occasion of the non-performance of the several promises and undertakings in the declaration mentioned, including the sum of $ 24.28 for his reasonable attorney's fees for entering up this judgment over and above his other costs and charges by him about his suit in this behalf expended to the amount of $ 186.20, "and the said defendants further agree that no writ of error or appeal shall be prosecuted on the judgment entered by virtue hereof, nor any bill in equity filed to interfere, in any manner, with the operation of said judgment, and that they hereby release all errors that may intervene in entering up the same, or issuing the execution thereon, and consent to immediate execution upon such judgment." This is signed, "W. P. Martindale, Defendants' Attorney." To this is attached the affidavit of A. H. Warren, the payee of the note, to the effect that he is acquainted with the makers, saw them sign the note and power of attorney and that the signatures to the note and power of attorney are the genuine signatures of the defendants; that they are alive and that the debt is due and unpaid. Whereupon judgment was entered up by the clerk of the circuit court in vacation which, following the title of the cause, recites that on the 20th of December, 1906, in vacation, before the clerk of the circuit court, the above named plaintiff comes by his attorney and files his declaration, the note sued on and power of attorney and proof of execution of note and power of attorney, "and also come the defendants by W. P. Martindale, their attorney, who enters the appearance of the defendants herein, files his cognovit, waives issue and service of process, and confesses judgment in favor of the plaintiff and against the defendants for the sum of $ 186.20, and waives all right of appeal and all errors that may intervene in entering judgment and issuing execution thereon. It is therefore considered that said plaintiff have and recover of said defendant...