Mason v. Ward

• Decision Date: 19 September 1907
• Citation: 80 Vt. 290,67 A. 820
• Parties: MASON v. WARD et al.
• Court: Vermont Supreme Court

67 A. 820

80 Vt. 290

MASON

v. WARD et al.

Supreme Court of Vermont. Chittenden.

Sept. 19, 1907.

Petition for a writ of prohibition by O. R. Mason against Henry Ward and others. Heard on demurrer to petition. Demurrer overruled.

Argued before ROWELL, C. J., and TYLER. MUNSON, WATSON, HAZELTON, POWERS, and MILES, JJ.

V. A. Bullard, for complainant Russell W. Taft, for defendants.

MUNSON, J. The case is presented by a demurrer to a petition for a writ of prohibition. It appears that the defendant Ward, while confined in jail on a writ sued out by the petitioner and then pending in county court, applied to defendant Stearns, a justice of the peace, for leave to come before him and confess judgment on the petitioner's claim; that the justice took jurisdiction of this application, and ordered the petitioner to file a specification of his claim, and to be present at the taking of Ward's confession of indebtedness; that these orders were made without the knowledge or consent of the petitioner; that he was unable to furnish a specification, and objected to doing it, and also objected to the entire proceeding; and that the justice now threatens to enforce his orders by proceedings for contempt.

The statute provides that "a justice may accept and record a confession of a debt to a creditor, made by a debtor personally, either with or without antecedent process, as the parties shall agree, and render judgment on such confession"; but that "such judgment shall not be rendered except upon a specification in writing filed with such justice, setting forth the claim upon which the judgment is rendered." V. S. 1048. The defendants contend that the clause, "as the parties shall agree," applies only to the clause, "either with or without antecedent process"; that the right given the debtor to confess his indebtedness is not left defendant on the consent of the creditor; that the confession is authorized as the basis of a judgment, and is of no benefit to the debtor unless judgment is had; and that, inasmuch as the judgment cannot be entered without a specification, the statute impliedly gives the magistrate the power necessary to procure the specification. We consider' these views untenable. Judgments on confession without antecedent process have no basis other than the statute, and a full compliance with the statute is necessary to their validity, and the provisions authorizing them are to be strictly construed. 2 Enc. Pl. & Pr. 975; 23 Cyc. 669; 17 A. & E. Enc. Law, 765, and cases cited. A judgment based upon a confession made without the request or consent of the creditor, and entered at the instance of the debtor alone, will have no validity unless the creditor ratifies or accepts it. 23 Cyc. 703; 17 A. & E. Enc. Law, 767; 11 Enc. Pl. & Pr. 981, and cases cited.

We find no justification in the language of our statute for a construction that would make the proceeding compulsory. The effect of the provision...