Richards v. First Nat. Bank of Ft. Collins

• Decision Date: 03 May 1915
• Docket Number: 8118.
• Citation: 148 P. 912,59 Colo. 403
• Parties: RICHARDS v. FIRST NAT. BANK OF FT. COLLINS.
• Court: Colorado Supreme Court

148 P. 912

59 Colo. 403

RICHARDS v. FIRST NAT. BANK OF FT. COLLINS.

No. 8118.

Supreme Court of Colorado

May 3, 1915

Error to Larimer County Court; Fred W. Stover, Judge.

Action by the First National Bank of Ft. Collins against Ben Richards. From a judgment refusing to vacate a judgment rendered for plaintiff under a warrant of attorney, defendant appeals. Reversed, with instructions to sustain motion to vacate the judgment.

L. D. Thomason, of Ft. Collins, for plaintiff in error.

R. W Fleming and Paul W. Lee, both of Ft. Collins, for defendant in error.

SCOTT J.

On the 6th day of April, 1912, the plaintiff in error executed and delivered to the defendant in error his promissory note in the sum of $2,000, payable on demand, and bearing interest at 8 per cent. per annum. The note contained the following provisions for confession of judgment:

'Makers and indorsers hereon hereby authorize and empower any attorney at law, at any time, to appear for them before any court of record in Colorado or elsewhere and waive the issuance and service of process, and confess judgment against them and in favor of the payee above named or its assignees for the said sum, interest, costs, and attorney's fees therein provided for, and thereupon to release all error and waive all right and benefit of a second trial or appeal in their behalf, also waiving all rights to exceptions.'

The complaint alleged that certain payments had been made thereon, and that there was due the plaintiff in the case the sum of $1,363.26. At the time of the filing of the complaint one Joseph Garst, an attorney at law, appeared under the authority of the provision in the note, and confessed judgment on behalf of the defendant in the amount prayed for in the complaint. Judgment was thereupon entered against the defendant, Richards. On the 4th day of June, 1913, the defendant below filed his motion and affidavit to vacate the judgment theretofore rendered against him. The motion and affidavit contained, among other things, the following as grounds therefor:

(1) Because the note attached to the complaint in said cause, and on which said judgment was based, was fully paid prior to the filing of said complaint, and prior to the rendition of said judgment.

(2) Because defendant, prior to the filing of complaint, and prior to the rendering of said judgment, turned over to the plaintiff a large amount of property, both real and personal of more than sufficient value to pay said note, as well as any and all other indebtedness then due and owing from defendant to plaintiff, which said property is still held and retained by plaintiff.

The affidavit of Richards contained an itemized statement of property so turned over to the bank, and alleged to be of the value of $6,100. Affidavits and counter affidavits were...