Lathrem v. Foreman

• Decision Date: 09 July 1958
• Docket Number: No. 35442,35442
• Citation: 151 N.E.2d 905,168 Ohio St. 186,68 A.L.R.2d 1151
• Parties: , 68 A.L.R.2d 1151, 5 O.O.2d 478 LATHREM, Appellee, v. FOREMAN, Appellant.
• Court: Ohio Supreme Court

Page 186

168 Ohio St. 186

151 N.E.2d 905, 68 A.L.R.2d 1151, 5 O.O.2d 478

LATHREM, Appellee, v. FOREMAN, Appellant.

No. 35442.

Supreme Court of Ohio.

July 9, 1958.

Syllabus by the Court

1. Warrants of attorney to confess judgment are to be strictly construed, and court proceedings based on such warrants must conform in every essential detail with the statutory law governing the subject.

2. Section 2323.13, Revised Code, requires the production of the warrant of attorney to the court at the time of confessing judgment, and, where the original warrant has been lost and can not be produced, the court, in an ex parte proceeding, lacks the power and authority to restore or re-establish it and then enter judgment by confession thereon, and a judgment so rendered is void.

3. Defendant's appearance in a proceeding to contest the validity of such judgment does not operate retroactively to place him before the court at the time the original judgment was rendered.

On November 2, 1945, Samuel F. Lathrem, the appellee herein, filed his petition in the Court of Common Pleas of Montgomery County, praying for judgment for $1,245, with interest, against Carl M. Foreman, appellant herein, on a certain promissory note with warrant of attorney to confess judgment, a copy of which was attached to the petition and made a part thereof.

By virtue of such warrant and be answer, an Ohio attorney at law entered defendant's appearance, waived the issuing and service of summons and confessed judgment against defendant in the amount claimed. This was followed by a judgment entry for plaintiff in the usual form.

By stipulation it was 'agreed between the parties that the original note with warrant of attorney, claimed by plaintiff to have been signed by defendant, was lost and therefore not before the court' when the judgment was taken and the entry filed, 'but that the plaintiff presented a copy thereof and based on said copy of note and warrant of attorney, a judgment was confessed in favor of the plaintiff and against the defendant.'

At the hearing, the court, without change in the pleadings, proceeded ex parte to receive testimony and thereupon restored the lost note and warrant of attorney as represented by the copy.

It is undisputed that the defendant was not summoned or notified and was not present when the above proceedings were had and the judgment obtained.

That judgment was allowed to remain dormant until November 29, 1952, when a motion to revive it was filed and summons thereon was issued and served on the defendant. He resisted revivor unsuccessfully in the Court of Common Pleas and carried the matter to the Court of Appeals, where in affirming the judgment of the court below the Court of Appeals held that the judgment being at most irregular could not be collaterally attacked on the motion for revivor, but that defendant's proper remedy was a petition to vacate the judgment. Thereupon such a petition was filed, and the defendant was successful in the Court of Common Pleas, the court holding that the original judgment was not merely irregular but void ab initio.

An appeal was perfected to the Court of Appeals 145 N.E.2d 837 on questions of law, and that court reversed the judgment and remanded the cause with instructions to determine whether, upon the evidence adduced, the defendant has shown cause to vacate the judgment under Section 2325.01, Revised Code, and has offered a defense prima facie valid under Section 2325.07, Revised Code.

An appeal as of right and the allowance of a motion to certify the record place the cause before this court for decision on its merits.

Pickrel, Schaeffer & Ebeling and Maurice J. Leen, Jr., Dayton, for appellant.

Shaman, Winer, Shulman & Ziegler, Dayton, for appellee.

ZIMMERMAN, Judge.

As we view the matter, the disposition of this case hinges on the interpretation of Section 2323.13, Revised Code (Section 11597, General Code), which reads:

'An attorney who confesses judgment in a case, at the time of making such confession, must produce the warrant of attorney for making it to the court before which he makes the confession; and the original or a copy of the warrant shall be filed with the clerk.'

It is contended by defendant that such section requires the presentation of the original warrant of attorney to the court as a condition precedent to the court's acquiring of jurisdiction over the person of defendant, and that otherwise no valid judgment by confession can be rendered. Defendant contends further that a note with warrant of attorney, which has admittedly been lost, can not be re-created or restored; that judgment by confession can not be taken thereon; and that any judgment rendered in such circumstances is void.

On its face, Section 2323.13, Revised Code, would seem to make the production of the warrant of attorney mandatory. It is well settled that a statute which relates to the essence of the thing to be done must be strictly pursued or the proceedings which it governs are a nullity. See State ex rel. Jones v. Farrar, 146 Ohio St. 467, 66 N.E.2d 531.

This court, in Haggard v. Shick, 151 Ohio St. 535, 86 N.E.2d 785, in approving and following two prior decisions, held that a warrant of attorney to confess judgment is to be strictly construed against the person in whose favor the judgment is given; and such holding corresponds with the rule generally prevailing. 30A American Jurisprudence, 270, Section 175. It naturally follows that the proceeding on a warrant of attorney to confess judgment should conform in every essential detail with the statutory law which governs such a proceeding. 'Confession of judgment is entirely a statutory measure and must meet the requirements thereof strictly.' Keyes v. Peterson, 194 Minn. 361, 364, 260 N.W. 518, 519.

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