Mining Co. v. Zappio

• Decision Date: 25 June 1909
• Docket Number: 10980
• Citation: 89 N.E. 97,80 Ohio St. 458
• Parties: The Lowellville Coal Mining Co. v. Zappio.
• Court: Ohio Supreme Court

89 N.E. 97

80 Ohio St. 458

The Lowellville Coal Mining Co. v. Zappio.

No. 10980

Supreme Court of Ohio

June 25, 1909

Action before justice of peace - Having jurisdiction of case and defendant - Attorney for defendant - May confess judgment for plaintiff, when - Record prima facie evidence of attorney's authority, when - Section 6596, Revised Statutes - Prosecution of error under Section 6701, Revised Statutes - Court procedure

1. In an action before a justice of the peace in which he has acquired jurisdiction of both the subject-matter of the action and the defendant therein, an attorney employed by the defendant to represent him in the action, may appear before said justice and in open court confess judgment in favor of the plaintiff and against his client, for the amount claimed to be due, and his authority to do so will be presumed until the contrary is shown. The record of the judgment so rendered is prima facie evidence that the attorney who confessed it was properly authorized.

2. Under the provisions of Section 6596, Revised Statutes, no appeal is allowed from a judgment rendered on such confession.

3. In said action, and after the judgment on confession had been rendered, the defendant, by said attorney, gave notice of appeal, and an undertaking for appeal was given in due time and to the approval of the justice, which, with a transcript of his docket containing the proceedings in the action, was filed within due time in the court of common pleas. Thereafter the plaintiff filed a motion to dismiss, on the ground that an appeal is not allowed from a judgment on confession. The court overruled the motion. The plaintiff neglected or refused to file a petition in the case, and after the time prescribed by statute for the filing of such petition had elapsed, the court dismissed the action "for want of prosecution," and rendered judgment against the plaintiff for costs of the suit.

Held 1. That such judgment of dismissal and for costs is a final order as contemplated by Section 6707, Revised Statutes, and forms a predicate for the prosecution of error in the circuit court.

2. If the circuit court finds error in such judgment of dismissal it may proceed to consider the order of the lower court overruling the motion to dismiss the appeal, and may sustain the motion and dismiss the appeal.

The facts are stated in the opinion.

Messrs Arrel, Wilson & Harrington, for plaintiff in error.

Mr. Frank Jacobs and Mr. D. J. Hartwell, for defendant in error.

PRICE, J.

The defendant in error brought suit against the plaintiff in error, before William B. Moore, a justice of the peace for Poland township, Mahoning county, to recover compensation in the sum of three hundred dollars for injuries alleged to have been sustained by him while he was in the employ of said company as a coal miner. The bill of particulars was filed on the 23d day of April, 1906; a summons for the defendant was issued and served. In addition an endorsement appears on the writ as follows: "Defendant accepts service. Jacob Stambaugh, President." The return day was April 27, 1906, at 9 o'clock A. M. By consent of parties the case was continued to May 1, 1906, same hour. The record shows that on that day the parties appeared and by consent the case was continued to May 2, 1906, 1 o'clock P. M. On that day, as the transcript shows, the following occurred: "May 2, 1906. Emil J. Anderson appeared as attorney for the defendant and confessed judgment in favor of the plaintiff in the sum of $300 and against defendant and for costs and gave notice of appeal. It is therefore considered and adjudged by me that plaintiff recover from defendant the sum of $300 debt and costs herein taxed at $------. W. B. MOORE, Justice of the Peace." On the 28th of May, same year, defendant moved that the docket entry be corrected to read: "Judgment by default" instead of "confessed judgment." This motion was overruled on May 31, and defendant excepted.

On the day judgment was entered, the defendant filed an appeal bond which was in due form and which was approved by the justice on the 10th of May, 1906. On the 31st of May, 1906, a transcript from the docket of the justice was filed in the court of common pleas. On August 3, 1906, the plaintiff filed a motion to dismiss the appeal, which was sustained on the 22d of September, 1906, and the appeal was dismissed. On October 12, 1906, the defendant filed a motion for rehearing, which was sustained October 18, same year, and cause reinstated, and on January 11, 1907, the court overruled the motion to dismiss the appeal.

The record shows the next step was taken May 6, 1907, when the court dismissed the action for want of prosecution. The entry reads: "The plaintiff failing to file an amended petition, the court for that reason dismisses the action for want of prosecution," to which plaintiff excepted. Judgment was rendered against plaintiff for costs.

Thereupon Zappio filed his petition in error against the plaintiff in error in the circuit court of Mahoning county, to reverse the judgment and orders of the court of common pleas. The errors assigned in that court were: "First. The court erred in overruling the motion of plaintiff in error to quash the appeal. Second. The court erred in assuming jurisdiction in the premises, other than to dismiss the appeal and render judgment for costs. Third. The court erred in rendering judgment against the plaintiff in error."

The circuit court reversed the judgment of the common pleas and rendered the following judgment: "It is therefore considered by this court that the judgment and decision rendered by the said court of common pleas be reversed and held for naught at costs of defendant in error, and the court further proceeding to render such judgment as the court of common pleas should have rendered, find that the motion to quash and dismiss the appeal is well taken and hereby doth grant the same. It is therefore considered by the court that the motion to quash the appeal be sustained and the appeal taken from the magistrate court to the court of common pleas be dismissed at costs of defendant. To all of which judgment and order the defendant in error excepts."

The coal mining company prosecutes error in this court to reverse said judgment.

We are disposed to consider the several points of error involved in inverse order to that adopted in the brief of the plaintiff in error, because from any viewpoint, the validity of the judgment rendered on confession of the coal company by its attorney, is necessarily to be determined. If the judgment so rendered upon its face is invalid; if an attorney could not legally confess judgment for his client in the case then pending before the justice, the same was not only irregular but void, inasmuch as the justice had no authority to recognize the effort of the attorney and enter such a judgment. In that event the judgment on its face would appear to be void, and might be wholly disregarded or collaterally impeached. On the other hand if such confession was apparently within the authority of the attorney, a judgment so confessed is not void on its face, and while in force must be treated as other judgments on confession.

The transcript from the docket of the justice shows that on the day to which the case had been continued by mutual consent of the parties, "Emil J. Anderson appeared as attorney for defendant and confessed judgment in favor of plaintiff in the sum of $300 and against defendant, and for costs, and gave notice of appeal." The defendant had been regularly summoned and one continuance had to May 1st. On that day the "parties appeared and by consent case was continued to May 2d at 1 o'clock P. M." On that day the confession was made. The justice had obtained jurisdiction over the subject-matter and of the defendant, and this jurisdiction was unquestioned when the judgment was rendered. According to the foregoing entry immediately following the judgment so entered on confession by the attorney, he gave notice of appeal. That act was not repudiated, for we see that an appeal bond was given and approved, and with it a transcript of the docket entries, etc., were duly filed in the court of common pleas.

If the judgment so rendered is considered as a "judgment rendered on confession" then no appeal from it could be lawfully taken to the court of common pleas. In other words, such judgment is final. Section 6596, Revised Statutes, provides that an appeal shall not be allowed in a case where judgment is rendered on confession.

What then is the standing of the judgment under consideration? It is not governed by Section 588, Revised Statutes, for that relates to a party appearing before the justice without process and confessing an indebtedness, in which case on the application of the creditor judgment may be rendered for the amount confessed.

In answer to the foregoing question we are of opinion that in a case attended by the facts appearing in the record and which have been quoted from the transcript, an attorney has power to confess judgment for his client, and that such power will be implied, where nothing to the contrary appears, and the record of the judgment is prima facie evidence that the attorney who confessed it was properly authorized. See 4 Cyc., 936. And in 23 Cyc., 701-2, it is said that "as a general rule a confession of judgment can be made only by defendant himself, or by some person duly authorized to act for him in that behalf. The authority of an attorney at law appearing in open court will be presumed until the contrary is shown, but this is not so in the case of an attorney in fact. An agent acting within the scope of his authority and to the extent of it, may confess judgment against his principal."

The latter...