Motsinger v. Walker

• Decision Date: 08 February 1943
• Docket Number: 4-6952
• Citation: 168 S.W.2d 385,205 Ark. 236
• Parties: MOTSINGER v. WALKER
• Court: Arkansas Supreme Court

168 S.W.2d 385

205 Ark. 236

MOTSINGER v. WALKER

4-6952

Supreme Court of Arkansas

February 8, 1943

Appeal from Clay Circuit Court, Eastern District; G. E. Keck, Judge affirmed.

Judgment affirmed.

O. T Ward, E. G. Ward and James O. Ward, for appellant.

R. W Karraker, T. A. French and A. U. Tadlock, for appellee.

OPINION

MCHANEY, J.

This is a suit on a foreign judgment rendered against appellant and in favor of appellee on a promissory note for $ 900, dated Jonesboro, Illinois, June 15, 1931, and payable to appellee at Jonesboro, Illinois, two years after date, with interest at 6 per cent. per annum from date until paid. A payment of $ 20 was indorsed on the note, as of March 13, 1939. The note contained this provision: "And to secure the payment of said amount I hereby authorize, irrevocably, any attorney of any court of record to appear for me in such court, in term-time or vacation, at any time hereafter, and confess a judgment without process in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together with costs and a reasonable dollars attorney's fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that my said attorney may do by virtue hereof."

Suit was brought thereon by appellee against appellant who lived in Rector, Arkansas, and an entry of appearance and consent for judgment, called a cognovit, was filed in the action by Ford L. Randleman, an attorney-at-law, pursuant to the provision of said note copied above. Included in the cognovit was this clause: "And the said defendant further agrees that no writ of error or appeal shall be prosecuted on the judgment entered by virtue hereof, nor any bill in equity exhibited to interfere, in any manner, with the operation of the judgment. . . ." Based on said note and cognovit, the circuit court of Union county, Illinois, entered judgment for appellee for the amount of said note and interest in the sum of $ 1,366.95, plus an attorney's fee of $ 136.69, or a total of $ 1,483.64, on February 9, 1940.

Appellant denied the execution of the note sued on in Illinois, and alleged she did sign a different note for the same amount as surety for her brother, Frank Morgan, who also signed same, and that she made a settlement agreement with appellee and made a partial payment thereof, tendering the balance under said agreement as made before suit in Illinois. Trial resulted in a verdict and judgment for appellee, hence this appeal.

Appellant defended the action principally on the ground that the note upon which the foreign judgment was rendered was a forgery, and for that reason said judgment was void for want of jurisdiction of the Illinois court to render it. This was purely a question of fact, was submitted to the jury under correct instructions and the jury's verdict, finding against her on this issue, is conclusive here. The note in question must be held to be valid and the foreign judgment based thereon was a valid exercise of its jurisdiction. This is a collateral attack on a judgment of a sister state and such a judgment is conclusive here, on collateral attack, except for fraud or want of jurisdiction. Lewis v. United Order of Good Samaritans, 182 Ark. 914, 33 S.W.2d 53; Cronin v. Union Aid Life Ins. Co., 184 Ark. 493, 42 S.W.2d 758. No fraud was alleged or proved by appellant.

Appellant alleges error in the refusal of the court to permit her counsel to open and close the argument to the jury. We think no error was committed in this regard. The statute, § 5122, Pope's Digest, provides that, "The burden of proof in the whole action lies on the party who would be defeated, if no evidence were given on either side." Here appellee had the burden of proving...