Pond v. Simons

• Decision Date: 23 October 1896
• Citation: 45 N.E. 48,17 Ind.App. 84
• Parties: POND v. SIMONS.
• Court: Indiana Appellate Court

17 Ind.App. 84

45 N.E. 48

POND

v.SIMONS.¹

Appellate Court of Indiana.

Oct. 23, 1896.

Appeal from circuit court, Cass county; U. Z. Wiley, Judge.

Action by Frederick L. Pond against Noah Simons. Judgment for defendant, and plaintiff appeals. Affirmed.

Winfield & Taber, for appellant. Frank Swigart and J. B. Smith, for appellee.

GAVIN, C. J.

Appellant sued appellee upon a judgment rendered against him by confession in an Illinois city court. That judgment was based upon what is known as a “judgment note” containing this provision: “And I do hereby authorize any attorney of any court of record to appear for me in any such court of record and confess a judgment for the amount due thereon, together with all costs, and fifteen dollars attorney's fees, at any time after maturity, either in term or vacation, and to agree that no writ of error or appeal shall be prosecuted on such judgment, nor any bill in equity filed to interfere therewith, and to release all errors and to consent to immediate execution thereon.” The record set forth in the complaint discloses that a complaint on this note was duly filed; that Alschuler & Murphy, as attorneys for appellee, appeared, and filed an answer confessing the complaint, whereupon judgment was rendered and entered. The appellee filed various answers, setting up that he had always been a resident of the state of Indiana; that he was not served with any process, and had no knowledge of such proceedings, and did not appear thereto, nor authorize any one to appear for him; and that the instrument sued upon was executed without any consideration, under duress, etc. The court held the answers good. Appellant insists that the record shows a judgment regularly and duly rendered, and that appellee may not contradict the record nor defeat the judgment by the assertion of any matter which would have been properly pleaded as defense in that action. It is contended upon the authority of Westcott v. Brown, 13 Ind. 83,Kingman v. Paulson, 120 Ind. 507, 26 N. E. 393, and Zepp v. Hager, 70 Ill. 223, that the recitals of the record as to jurisdictional facts cannot be disputed. This is doubtless the correct rule where a domestic judgment is involved, as in Bank v. Hanna, 12 Ind. App. 240, 39 N. E. 1054; but the supreme court of the United States, to which we must look as the highest arbiter upon questions like this, involving the construction of the provisions of the United States constitution and statutes, has overthrown this earlier doctrine of our own and other states as applied to judgments rendered in other states. It declares that, “notwithstanding the averments in the record of the judgment itself, the jurisdiction of the court by which a judgment is rendered in any state may be questioned in a collateral proceeding; that the jurisdiction of a foreign court over the person of the subject-matter is always open to inquiry; that in this respect a court of another state is to be regarded as a foreign court.” Machine Co. v. Radcliffe, 137 U. S. 287, 11 Sup. Ct. 94; Brown, Jur. § 26. It is claimed by counsel that judgments by confession are sustained by the presumption that they are regular unless the contrary appears upon the record. It is true that it is said in Caley v. Morgan, 114 Ind. 350, 16 N. E. 793, that “judgments by confession are supported by the same presumptions which sustain other judgments when collaterally called in question.” This was said, however, when considering a domestic judgment rendered in open court. The doctrine ought not to be, and is not, applicable when considering a judgment such as this, not rendered by a judicial officer or by a court, but merely entered by a ministerial officer without the intervention of any judicial tribunal. If we were to give to the judgment, as claimed by appellant, the same force and effect which it would possess in Illinois, still no presumption would come to its relief. In Matzenbaugh v. Doyle (Ill. Sup.) 40 N. E. 935, it is said by the supreme court of that state, concerning such a judgment: “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.” That there was a clear distinction between such judgments entered in term time and those entered in vacation was early recognized in Illinois. “But a judgment confessed in vacation creates no such presumptions, as the same intendments are not indulged in to sustain ministerial as are in favor of judicial acts.” Roundy v. Hunt, 24 Ill. 598. The statutes of Illinois do authorize judgments to be confessed by defendants in person or by attorney, either in term time or in vacation, “and judgments entered in vacation shall have like force and effect and from the date thereof become liens, in like manner and extent as judgments entered in term.” Laws 1857, p. 29, § 2. The courts of Illinois sustain and give effect to such judgments, although in this state they cannot be entered...