Kahn v. Lesser

• Court: Wisconsin Supreme Court
• Writing for the Court: PINNEY
• Citation: Kahn v. Lesser, 97 Wis. 217, 72 N. W. 739 (Wis. 1897)
• Decision Date: 22 October 1897
• Parties: KAHN v. LESSER.

97 Wis. 217

72 N.W. 739

KAHN

v.LESSER.

Supreme Court of Wisconsin.

Oct. 22, 1897.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Joseph Kahn, as administrator of Simon Kahn, deceased, against Morris Lesser, on notes containing a warrant of attorney. From the judgment entered, defendant appeals. Reversed.

The appellant, Morris Lesser, and one Barnet Wisotzky, were partners, under the firm name of Lesser & Wisotzky. In May, 1883, they executed at Milwaukee, Wis., to Simon Kahn, since deceased, their promissory note for $3,000, payable on demand, with interest at 7 per cent. until paid. July 30, 1883, they executed to him a similar note for $1,000, payable on demand, with like interest. Annexed to each of these notes was a joint warrant of attorney, in the usual form, for confessing judgment on said notes, signed by said appellant, Lesser, and by said Wisotzky, authorizing the attorney therein named, or any attorney of any court of record, in their names and stead, “to enter our appearance before any court of record in term time or in vacation in any of the states or territories of the United States, at any time after the said note becomes due, to waive the service of process, and confess judgment in favor of the said Simon Kahn or his assigns” for the sum named in each of said notes, or so much as should appear to be due according to the tenor and effect of said notes, and interest thereon to the date of the entry of said judgment, together with costs, and to file a cognovit for the amount that might be so due, and to release all errors, etc. On the 5th of May, 1896, said Simon Kahn filed his complaint in the circuit court of Milwaukee county on said notes, claiming $2,977.80 due thereon; stating therein that, as to the said Barnet Wisotzky, any action or proceeding for the recovery of the amount due and unpaid was by the statutes of the state of Wisconsin barred by the lapse of time, since the notes became due and payable, but claiming that an action thereon as to the defendant Morris Lesser was not barred; alleging that before six years had elapsed from the time of the execution and delivery of the said notes, and after both had become due and payable, the defendant Morris Lesser departed from the state of Wisconsin, and has ever since continued to absent himself from, and to reside out of, said state; that a cause of action had accrued upon both of the notes before his said removal. There was an answer to the complaint of confession on the part of Morris Lesser by J. W. Bass, as his attorney, whereby he confessed judgment for the amount of $2,977.80 and costs, allowed at the sum of $29, filing with said answer the notes and warrant of attorney; and judgment was perfected the same day for damages and costs in the sum of $3,006.80. Subsequently, April 22, 1897, the appellant, Lesser, filed his verified petition in said proceeding, alleging that the judgment was entered upon confession of J. W. Bass, without authority from said appellant, and that he had not in any manner submitted himself or been subjected to the jurisdiction of the court, and that the judgment was entered without jurisdiction; and he prayed that it might be set aside, vacated, and annulled, etc. It appeared from affidavits filed therewith that Simon Kahn, plaintiff in said proceeding, died September 1, 1896, intestate, and that letters of administration of his estate had been issued to Joseph Kahn, who had qualified as such administrator. And the said appellant deposed that he had neither authorized, empowered, nor directed the said attorney, J. W. Bass, or any other person, to waive any defense that he might or did have, or that should at any time exist, to any action that might or should be brought upon said notes. And it was made to appear that Morris Lesser never was a resident of the state of Wisconsin, but resided in, and at all times since February, 1885, had been a resident of, the state of New York. An order was granted requiring Joseph Kahn, administrator of the estate of Simon Kahn, to show cause, etc., why the judgment in the above proceeding against Morris Lesser, and in favor of Simon Kahn, should not be set aside, vacated, and annulled. Affidavits were filed in opposition to said order,--one by Joseph Kahn, showing that said notes were executed and delivered by the appellant, Morris Lesser, personally, at the city of Milwaukee, Wis., where he was stopping at the time, and that Lesser was in the city of Milwaukee several times in the summer and fall of 1883, and at different times during the years 1883 and 1884, and until early in the year 1885, when he departed from the state, and had ever since continuously been absent therefrom and a resident of some other state, and that since said departure he had never returned to the state of Wisconsin. It further appeared that upon an affidavit of Simon Kahn, and upon his motion, and with the consent of the attorney confessing said judgment, the record and pleadings were amended by changing the name of the defendant therein from “Morris Lasser” to “Morris Lesser,” to correct an error in that respect. The court, upon the hearing of said order to show cause, overruled and denied the motion of the said Morris Lesser to set aside, vacate, and annul the said judgment as against him, from which he appealed to this court.J. F. Burke and J. B. Kemper, for appellant.

J. W. Bass, for respondent.

PINNEY, J. (after stating the facts).

The judgment in this case must stand, if at all, by the authority of the statute. The proceeding by which it was entered was outside and in derogation of the common-law practice of courts, and the statute, as well as the proceedings...