Jones v. Turner

• Decision Date: 24 January 1930
• Docket Number: No. 85.,85.
• Parties: JONES v. TURNER.
• Court: Michigan Supreme Court

249 Mich. 403

228 N.W. 796

JONES

v.TURNER.

No. 85.

Supreme Court of Michigan.

Jan. 24, 1930.

Error to Circuit Court, Van Buren County; Glenn E. Warner, Judge.

Action by William A. Jones, administrator of the estate of Thomas A. Jones, deceased, against Dea. H. Turner. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.

Argued before the Entire Bench.

W. J. Barnard, of Paw Paw, for appellant.

David Anderson, of Paw Paw, for appellee.

POTTER, J.

May 9, 1928, defendant gave to C. E. Ammann Co. his 90-day promissory note for $1,000. The note was made and executed in Michigan. C. E. Ammann personally owed Thomas A. Jones, now deceased. Plaintiff sues as administrator of the estate of Thomas A. Jones, deceased. Ammann was unable to discharge his personal indebtedness, and plaintiff instituted suit against him, recovered judgment, and filed a creditor's bill in Illinois, whereupon C. E. Ammann and wife made and executed a real estate mortgage to plaintiff which is in process of foreclosure, and C. E. Ammann indorsed and delivered to plaintiff defendant's note in question. Both the real estate mortgage and defendant's note were accepted by plaintiff as collateral security for the payment of C. E. Ammann's personal indebtedness to plaintiff as administrator. The note was given by defendant for Arizona land which was to be deeded to defendant within 60 days. The land was not deeded. The consideration for the note failed. There was a power of attorney in the note as follows: ‘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 a judgment without process in favor of the holder of this note for such amount as may appear to be unpaid thereon, together with costs and attorneys' twenty-five dollars fees, 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 the said attorney may do by virtue hereof.’

Suit was instituted in Illinois by plaintiff on this note and judgment taken against defendant. Suit was then brought in this state by plaintiff against defendant, and plaintiff counted in his declaration in separate counts on the Illinois judgment and on the note. Defendant pleaded the general issue and gave notice the judgment sued upon was not one entitled to full faith and credit under the Constitution of the United States and the Constitution of this state; the note was given without consideration; the consideration for said note had failed, plaintiff was not a bona fide holder for value of the note, and the judgment was not such a judgment as would be recognized by the laws of Michigan. There was verdict for defendant, but the court rendered judgment for the plaintiff non obstante, and defendant brings error.

The clause of the note above quoted authorizing an attorney to confess judgment does not destroy the negotiability of the note. The negotiable character of an instrument otherwise negotiable is not affected by a provision which authorizes a confession of judgment if the instrument is not paid at maturity. Section 6046, C. L. 1915. Though such provision does not affect the negotiability of the note, it does not compel the courts of this state to recognize as valid judgments of the courts of foreign states rendered without personal service or appearance within such foreign jurisdiction on contracts made and executed in Michigan.

In First National Bank v. Garland, 109 Mich. 515, 67 N. W. 559,33 L. R. A. 83, 63 Am. St. Rep. 597, suit was brought in this state on an Ohio judgment rendered in pursuance of a power of attorney similar to that here involved. The contract embodying the warrant of attorney had been made and executed in Ohio, and judgment had been rendered thereon in Ohio, and this court held the warrant of attorney was such as to confer the necessary jurisdiction upon the Ohio court and the judgment one entitled to full faith and credit by the courts of this state.

In this case the note was made and executed in Michigan. Its validity is governed by the law of the state where it was made. A judgment was taken thereon in Illinois without personal service on defendant or his appearance in person or by attorney, except in pursuance of the power of attorney contained in the note. The authority for confessing judgment was not in a proper instrument distinct from that containing the contract or other evidence of the demand for which such judgment was confessed as required by statute. Section 12793, Comp. Laws 1915.

Such judgment will not be recognized by the courts of this state. Acme Food Company v. Kirsch, 166 Mich. 433, 131 N. W. 1123,38 L. R. A. (N. S.) 814. The Illinois judgment rendered upon the note in question being invalid, was plaintiff entitled to recover on the note? The note was without consideration and void as between the original parties thereto. The burden of proof was upon plaintiff to show he was a bona fide holder for value without notice of infirmities which might affect defendant's liability thereon. Defendant claims not...