Matzenbaugh v. Doyle

Citation40 N.E. 935,156 Ill. 331
PartiesMATZENBAUGH v. DOYLE.
Decision Date15 May 1895
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from appellate court, Second district.

Confession of judgment by Josiah Matzenbaugh against Robert Doyle. The judgment was afterward vacated, on motion, and the order of vacation was affirmed by the appellate court. Plaintiff appeals. Affirmed.

Kay & Kay, for appellant.

Robert Doyle, for appellee.

BAILEY, J.

On the 3d day of November, 1890, Josiah Matzenbaugh, for the purpose of entering judgment by confession against Robert Doyle, filed with the clerk of the circuit court of Iroquois county, in vacation, the following papers: (1) A promisory note for $1,075, executed by the defendant and one Charles Morris, dated May 16, 1878, payable to the order of the plaintiff, 30 days after date, with interest after maturity at the rate of 10 per cent. per annum. (2) A warrant of attorney executed by the defendant and Morris, authorizing any attorney of any court of record to enter their appearance in any court of record, in term time or in vacation, at any time after the maturity of the note, and waive service of process, and confess judgment against them, in favor of the plaintiff, upon the note, for so much as might appear to be due, according to the tenor and effect thereof, together with costs and $10 attorney's fees. (3) A declaration on the note, and a cognovit confessing judgment thereon for $1,482.57. (4) The plaintiff's affidavit proving the genuineness of the defendant's signature to the note and warrant of attorney, and also stating that the defendant was alive; that the sum of $1,482.57 was then due on the note, according to its tenor and effect; and that Charles Morris was dead. Upon the filing of these papers, the clerk entered up a judgment in favor of the plaintiff, and against the defendant, for $1,482.57 and costs. No writ of execution having been issued on the judgment, the plaintiff, in October, 1893, sued out a scire facias to revive it; and, that writ having been served on the defendant,he appeared, and moved the court to vacate the judgment, the ground upon which the motion was based being that at the time the judgment was entered the note appeared to be barred by limitation, and that the confession of judgment was therefore without authority. The plaintiff, upon the hearing of the motion, offered to show by affidavit that several payments had in fact been made by the defendant on the note, and that the last payment was made within less than 10 years prior to the entry of the judgment. This offer was rejected by the court, and the defendant's motion to vacate the judgment was thereupon sustained. That order, on appeal to the appellate court, was affirmed, and this appeal is from the judgment of affirmance.

It appears that at the time the judgment was entered no indorsements of any payments had been made on the note, and that no proof was then offered that the note, by partial payments or otherwise, had been taken out of the operation of the statute of limitations. At that time the note had been overdue more than 10 years, and, so far as was then made to appear by the papers filed with the clerk, it was barred by limitation.

The first question presented is whether, upon the hearing of the defendant's motion to vacate the judgment, the plaintiff should have been permitted to supply evidence of partial payments on the note within 10 years, so as to show that the running of the statute had in fact been arrested, and that the note was not really barred by limitation. It is clear that to this question a negative answer must be given. In cases of this character the authority of the attorney to execute the cognovit, and of the clerk to enter up judgment in pursuance thereof, should fully and clearly appear from the papers filed upon the application for judgment. Those papers, together with the judgment, constitute the record; and like other records, it must be tried by itself, and its validity cannot be made to depend upon evidence aliunde. The entry of judgment having been made in vacation, before the clerk,-a mere ministerial officer,-it will be aided by none of those presumptions which prevail where judgments are entered in open court; and hence no presumptions will be indulged in that evidence was presented or heard, other than that appearing in the record. If, then, the authority of the attorney to execute the cognovit was not shown at the time the judgment was entered, the clerk was without authority to enter up the judgment, and such entry was improvidently made. In Stein v. Good, 115 Ill. 93, 3 N. E. 735, a judgment by confession entered in vacation was set aside for the reason that no proof was made before...

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19 cases
  • Turner v. Alton Banking & Trust Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 19, 1950
    ...Court of Illinois in the case of Parsons v. Lurie, 400 Ill. 498, 81 N.E.2d 182, 185, in which the court, citing Matzenbaugh v. Doyle, 156 Ill. 331, 333, 336, 40 N.E. 935, said: "* * * the warrant of attorney in a cognovit note confers no authority to confess judgment on a note after the pla......
  • Hester v. Frink
    • United States
    • Missouri Court of Appeals
    • May 3, 1915
    ... ... Matzenbaugh v. Doyle, 156 Ill. 331, 40 N. B. 935. The cashier, having no authority to transfer the note, delivered it to Withers as a discharged obligation, and ... ...
  • Hester v. Frink
    • United States
    • Kansas Court of Appeals
    • May 3, 1915
    ... ... also its incident the warrant of attorney which could not ... survive it. [Matzenbaugh v. Doyle, 156 Ill. 331, 40 ... N.E. 935.] The cashier having no authority to transfer the ... note delivered it to Withers as a discharged ... ...
  • Hutson v. Wood
    • United States
    • Illinois Supreme Court
    • June 3, 1914
    ...and, like other records, it must be tried by itself, and its validity cannot be made to depend upon evidence aliunde.’ Matzenbaugh v. Doyle, 156 Ill. 331, 40 N. E. 935. The affidavit was either sufficient or insufficient. If it was sufficient, the testimony was unnecessary; if insufficient,......
  • Request a trial to view additional results

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