Ohio Bureau of Credits, Inc. v. Steinberg, 3 Div. 830.

• Decision Date: 06 August 1940
• Docket Number: 3 Div. 830.
• Citation: 199 So. 246,29 Ala.App. 515
• Parties: OHIO BUREAU OF CREDITS, INC., v. STEINBERG.
• Court: Alabama Court of Appeals

199 So. 246

29 Ala.App. 515

OHIO BUREAU OF CREDITS, INC., v. STEINBERG.

3 Div. 830.

Court of Appeals of Alabama

August 6, 1940

Rehearing Denied Oct. 29, 1940.

Appeal from Circuit Court, Montgomery County; Eugene W. Carter Judge.

Suit on judgment by Ohio Bureau of Credits, Incorporated, against A D. Steinberg. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Ohio Bureau of Credits, Inc v. Steinberg, 199 So. 252.

A judgment of an Ohio court of record, based on a warrant of attorney contained in a note entered into in Ohio, was a valid and binding judgment of a court of competent jurisdiction in Ohio, and Alabama court in action on the judgment was required to give to the judgment full faith and credit, notwithstanding that the warrant of attorney would have been void under Alabama statute had it been executed in Alabama. 28 U.S.C.A. § 1738; U.S.C.A.Const. art. 4, § 1; Gen.Code Ohio, §§ 11594-11597; Code Ala.1923, § 8047.

The complaint is as follows:

"Count 'A'. The Plaintiff, Ohio Bureau of Credits, Inc., a Corporation, claims of the Defendant the sum of $561.10 for that heretofore and on to-wit, the 20th day of July, 1939, the Plaintiff recovered of the Defendant in the Municipal Court of Columbus of Franklin County, in and for the State of Ohio, which said Court is a Court of Record and of General Jurisdiction, a judgment for the sum of $561.10, said judgment being in words and figures as follows:

" 'Ohio Bureau of Credits, Inc., Action on Cognovit

" 'Assignee, 60 E. Broad St., Charles A. Slade Atty. for Plff

" 'Columbus, Ohio Am't claimed, $561.10 with int. from 7-20-39

on

" 'Plaintiff.

" 'No 245777 vs. Doc. 465 $314.88 193, at 8 per cent and costs

" 'A. D. Steinberg Judgment for Plff July 20, 1939

" '1210 Madison Avenue, $561.10 and costs & int of 8% on $314.88 from

7-20-39

" 'Montgomery, Ala.

" 'Be it remembered, That on the 20th day of July, 1939, the said Plaintiff filed their Petition herein, whereupon the following proceedings were had.:

" '7-20-39 Petition Answer and Entry in Cognovit filed

" '7-20-39 Judgment by confession by attorney for defendant

" 'Miller for $561.10 interest and costs of suit as per entry.

" 'Entry:

" 'This day came the plaintiff by its attorney; also appeared in open court, for and on behalf of said defendant, Jeannette Critchlow, an attorney at law of this court, and by virtue of the warrant of attorney annexed to the note attached to the petition in said cause, shown to have been duly executed by said defendant, entered the appearance of said defendant and waived the issuing and service of process in this action and confessed a judgment on said note against said defendant and in favor of said plaintiff for Five Hundred Sixty one dollars and ten cents, being the amount of the principal and interest due on said note and for the costs taxed and to be taxed and released and waived all exceptions, errors and right of appeal in the premises. It is therefore considered that said plaintiff recover of said defendant the sum of Five Hundred Sixty one dollars and ten cents, being the amount of said note with interest computed at eight per cent per annum from the 11th day of May 1931 and also ______ costs herein expended, taxed at $______

" 'Fred J. Miller

" 'Judge'

"The plaintiff further avers that said judgment was based upon a promissory note executed by the Defendant to the order of The Farmers & Merchants Bank Co. of Millersburg, Ohio, which note was made in Millersburg, Ohio on to-wit the 11th day of May 1931 and payable on demand, which note was duly and legally transferred and assigned to the Ohio Bureau of Credits, which note contained as a part thereof the following warrant of attorney, together with a waiver of service of process:

" 'We hereby authorize and empower any Attorney of any Court of Record in the State of Ohio, or elsewhere in the United States. These are to authorize you, or either of you to appear for us, or either of us, in any of said Courts with or without process, at the suit of the Farmers & Merchants Bank Co. or the legal holder thereof, on the above Note, at any time after the same becomes due, waive the issuing and service of process and confess judgment thereon against us, or either of us, in favor of the said The Farmers & Merchants Bank Co. or the legal holder thereof, for the sum due on said Note, and costs of suit, and release all errors, and waive previous notice to us, or either of us, and also waive all right of appeal of the judgment so confesses, and for so doing this shall by your warrant.'

"That under and pursuant to said warrant, one Jeannette Critchlow, an attorney at law practicing before the said Court appeared as attorney for defendant entered the appearance of said defendant and waived the issuing and service of process in this action and confessed a judgment on said note against said defendant and in favor of said plaintiff.

"That under the laws of the State of Ohio, where said judgment was obtained, the defendant was authorized to confess judgment by himself, or by an attorney duly authorized, and without process, the laws of the State of Ohio being in words and figures as follows:

" 'By Debtor Personally in Court--A person indebted, or against whom a cause of action exists, may personally appear in a court of competent jurisdiction and, with

the assent of the creditor, or person having such cause of action, confess judgment; whereupon judgment shall be entered accordingly.'

" 'Warrant of Attorney to Confess--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.'

"The Plaintiff further avers that the Municipal Court of Columbus had jurisdiction of the subject matter and parties to said suit and that the judgment, together with interest thereon, remains unsatisfied, wherefore this suit.

"Count 'B'. The Plaintiff, Ohio Bureau of Credits, Inc., a Corporation, claims of the Defendant the sum of $561.10, for that heretofore and on to-wit, the 20th day of July, 1939, the plaintiff recovered of the Defendant before Fred J. Miller, Judge of the Municipal Court of Columbus, in the County of Franklin in and for the State of Ohio, which Court is a Court of Record, a judgment for $561.10, and which under the laws of Ohio, the Municipal Court of Columbus has the following jurisdiction:

" 'In all * * * actions and proceedings at law for the recovery of money or personal property of which the * * * court of common pleas of the county of Franklin * * * has or may have or be given jurisdiction, when the amount claimed by any party or the appraised value of the personal property sought to be recovered, does not exceed * * * fifteen hundred dollars * * *, and in such actions judgment may be rendered for an amount over * * * fifteen hundred dollars when the excess over * * * fifteen hundred dollars shall consist of interest or damages, or costs accrued after the commencement of the action.'

"The Plaintiff further avers that said judgment was rendered on a note made by the Defendant in Millersburg, Ohio on the 11th day of May, 1931 and payable on Demand to the order of the Farmers & Merchants Bank Co. which note was duly and legally transferred and assigned to the plaintiff, which note provided, authorized and empowered any attorney of any Court of Record in the State of Ohio or elsewhere in the United States to confess judgment for defendant in favor of the legal holder of said note, with or without the service of process, and for so doing, the provisions contained in said note should be the attorney's warrant.

"The Plaintiff further avers that Jeannette Critchlow, was an attorney of Record, and appeared in behalf of the Defendant, and waived the issuance of the service of process and confessed a judgment on said note against said defendant.

"The Plaintiff hereby adopts that part of Count 1 from: 'That under the laws of the State of Ohio, where said judgment was obtained,' etc., to the end of said Count as fully as though it was set out in this count."

Herbert S. Rice of Montgomery, for appellant.

Hill, Hill, Whiting & Rives, of Montgomery, for appellee.

BRICKEN Presiding Judge.

It appears from the record in this case that Ohio Bureau of Credits, Inc., a corporation, the assignee of a negotiable promissory note, made by A. D. Steinberg, at Millersburg, Ohio, to The Farmers & Merchants Bank Co. of Millersburg, Ohio, on May 11, 1931, and payable on demand, brought suit on said note in the Municipal Court of Columbus, Franklin County, Ohio, a court of record and of general jurisdiction, on July 20, 1939, against A. D. Steinberg, the maker of said note.

The note in question contained a warrant of attorney under the provisions of which any attorney of any court of record in the State of Ohio was authorized to appear in any court of record of that State, with or without process, at the suit of The Farmers & Merchants Bank Co., or the legal holder of said note, at any time after the same became due, and waive the issuance and service of process and confess judgment on said note, in favor of the legal holder thereof for the amount due thereon, and costs of suit, and waive previous notice to the maker of said note, etc.

On July 20, 1939, Jeannette Critchlow, an attorney at law, practicing law before the Municipal Court of Columbus, Franklin County Ohio, appeared as attorney for A. D. Steinberg, the defendant in said court, under said warrant of attorney, which was authorized and legal under the...