Richardson v. Thomas Beldam.

• Decision Date: 31 March 1886
• Citation: Richardson v. Thomas Beldam., 18 Ill.App. 527, 18 Bradw. 527 (Ill. App. 1886)
• Parties: MERICK A. RICHARDSONv.THOMAS BELDAM.
• Court: Appellate Court of Illinois

18 Ill.App. 527

18 Bradw. 527

MERICK A. RICHARDSON

v.THOMAS BELDAM.

Appellate Court of Illinois, First District.

March Term, 1886.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.Opinion filed April 28, 1886.

The record proper sent up by the clerk contains a placita or convening order of the court at a term beginning September 21, 1885, being the third Monday of that month; it recites that October 5, 1885, there was filed in said court a certain judgment note, narr. and cognovit, which are set out in words and figures.The judgment note purports to have been made by Richardson, bears date October 2, 1885, by which the maker promised to pay Thomas Beldam thirteen thousand five hundred twenty- two and 66-100 dollars, with interest, on demand.To that note a warrant of attorney was annexed in the usual form, authorizing any attorney of any court of record to appear for the maker in such court, in term or vacation, at any time thereafter, and confess judgment without process in favor of the holder thereof.The declaration was upon said note by the payee, Beldam, as plaintiff.The cognovit was regular and proper in all respects.The record then recites: “And thereupon on the same day, to wit, the 5th day of October, 1885, the following among other proceedings were had and entered of record in said court, to wit, court opened by proclamation;” and it then recites the entry of judgment and issuing of execution as of that date.

Richardson, the defendant in the judgment, having, subsequently to the entry thereof, made a voluntary assignment for the benefit of his creditors to Roche, the latter came in and entered a motion October 16, 1885, to set aside the judgment and execution.In support of the motion the record of the proceedings was adduced in evidence, and the affidavit of a deputy clerk was also read, which stated that on Saturday, the third day of October, 1885, the court duly adjourned to Monday, the 5th day of October, 1885, at the hour of ten o'clock, in the forenoon thereof, and that on said Monday, the fifth day of October aforesaid, the circuit courtduly convened at the hour of ten o'clock in the forenoon, and not before.Then there were affidavits read in support of the motion to the effect that the said judgment was in fact entered before the hour of ten o'clock in the forenoon of that day.

Such being the only ground upon which the court was asked to set aside the judgment, it was deemed insufficient, and the motion denied.Upon that ruling, Roche, who was no party to the original proceedings, brings error to this court.

Mr. FREDERIC ULLMANN, Mr. R. S. THOMPSON and Messrs. TENNEY, BASHFORD & TENNEY, for plaintiff in error.

Messrs. H. T. & L. HELM, for defendant in error.

MCALLISTER, J.

There was no claim made in the court below, nor is there any here, that the judgment, which the assignee of Richardson sought to have set aside, was void on the ground of fraud, either for want of a bona fide debt or as having been obtained for any false or unlawful purpose.The only ground relied on was a supposed irregularity in entering the judgment before the hour of ten o'clock had arrived, on the morning of October 5th, that being the hour to which the court adjourned on the previous Saturday.The judgment was entered in term time, by a court of superior jurisdiction, having complete jurisdiction of the person of the defendant, and of the subject-matter.The debt was due and the warrant of attorney strictly pursued.The record, when tried by itself, is complete, disclosing no irregularity whatever.It shows that the court was opened by proclamation before the judgment was entered.

No application to the court below was made to correct the record as respects its statement that the court had been opened by proclamation that morning when the judgment was entered.But an attempt was made to show by the ex parte...