Rubin v. Dale, 22236.

• Decision Date: 13 May 1930
• Docket Number: 22236.
• Citation: 288 P. 223,156 Wash. 676
• Parties: RUBIN v. DALE.
• Court: Washington Supreme Court

288 P. 223

156 Wash. 676

RUBIN v. DALE.

No. 22236.

Supreme Court of Washington

May 13, 1930

Department 2.

Appeal from Superior Court, King County; James B. Kinne, Judge.

Action by Theodore Rubin against D. H. Dale. From an adverse judgment, the defendant appeals.

Affirmed.

Chas. W. Johnson, of Seattle, for appellant.

Shank Belt, Fairbrook & Rode, of Seattle, for respondent.

HOLCOMB J.

This action was brought by respondent against appellant to recover upon a judgment in favor of respondent obtained in Illinois.

The judgment is as follows:

'Feb. 18th, 1922. And now on this day being one of the Judicial days of the December term 1921 of the county court of Fayette County the said plaintiff by Walter F. Boye, his attorney, comes in open court and files herein his declaration in a plea of trespass on the case upon promises together with an affidavit of the mailing of notice to the defendant name attached which notice is admitted in evidence and which notice recites that a Judgment was to be confessed by the plaintiff and against the defendant in the County court of Fayette County, Illinois, and which notice and receipt thereof bear the signature of the defendant as having been received by the defendant on Dec. 17, 1921, and the Court having heard evidence as to the plaintiff's claim and evidence having been heard in open court and thereupon the said defendant by John H. Webb, his attorney, also comes and files herein his warrant of attorney, the execution of which being duly proved and also his cognovit confessing the action of said plaintiff against D. H. Dale the said defendant, and that the said plaintiff has sustained damages herein by reason of the promises to the sum of Six hundred Eighty nine dollars and sixty-eight cents.

'Thereupon, upon testimony heard in open court it is considered by the Court that the said plaintiff, Theodore Rubin, do have and recover of and from the defendant D. H. Dale, said damages of Six Hundred eighty nine dollars, and sixty-eight cents in form as aforesaid by the said defendant confessed together with costs of and charges in this behalf expended and have execution therefor.

'C. R. Torrence, County Judge.'

Although the judgment recites that it was based upon a 'declaration in a plea of trespass on the case upon promises,' by an interrogatory propounded by appellant to respondent it was elicited that the judgment by confession was based upon the following written instrument:

'St. Peter, Illinois, April 27, 1914.

'October 27, 1914, after date for value received I promise to pay to the order of the Equitable Securities Company of Columbus, Ohio, Four Hundred Eight Dollars with interest at the rate of six per cent. per annum after maturity at the 1st National Bank, St. Peter, Illinois. And I, we or either of us authorize any attorney at law to appear for me, us or either of us, in any action on the above note at any time after said note becomes due, in any court of record in or of the State of Ohio or any other state in the United States and waive the issuing any service of process against me, us or either of us, and confess judgment in favor of the payee, endorsee, assignee, or any other legal holder of said note against me, us or either of us, for the amount that may then be due thereon, with interest at the rate therein mentioned and costs of suit, and to waive and release all errors of said proceedings, petitions in error and the right to appeal from the said judgment.

'D. H. Dale.'

It will be observed that in the above instrument a warrant or authority of attorney was given to any attorney at law to appear for the maker of the instrument in any action on it at any time after the note became due, that is, after October 27, 1914, in any court of record in or of the state of Ohio or any other state in the United States, and waive the issuing (of) any service of process against him and confess judgment in favor of the payee, indorsee, assignee, or any other legal holder of the note against him, or either of them, for the amount that might then be due thereon, with interest at the rate therein mentioned and costs of suit; and to waive and release all errors, etc.

It is to be noted, also, that the confession of judgment entered in the county court in Fayette county, Ill., was long after the note became due.

The judgment recites proof of mailing of notice to appellant, which recited that a judgment was to be confessed by the plaintiff and against the defendant in that court, which notice and receipt thereof bearing the signature of the defendant as having been received by him on December 17, 1921, was filed in court, that the court heard evidence as to the claim of plaintiff in open court, and that defendant by one Webb, his attorney, also appeared and filed therein his warrant of attorney, the execution of which was duly proved, and also his cognovit confessing the action of plaintiff against appellant, and that damages had been sustained by appellant by reason of the promises in the sum of $689.68. Judgment was thereupon entered for that amount, together with costs and charges.

A statute of Illinois was pleaded and proven, Ill. Rev. Stat. 1925, c. 110,§ 88, providing that:

'Any person for a debt bona fide due may confess judgment by himself or attorney duly authorized, either in term time or vacation, without process. 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.'

A statute was also pleaded and proven, Ill. Stat. Ann. (Laws of 1907, p. 403,§ 5) § 7644, par. 2, which provides that the negotiable character of an instrument otherwise negotiable is not effected by a provision which authorizes a confession of judgment.

Replying to an allegation in the answer of appellant that the action was barred by the statute of limitations, respondent further pleaded and proved the statutes of Illinois, Ill. Rev. Stat. 1925, c. 83, § 17 (§ 16) which provide that actions on bonds, promissory notes, etc., in writing, may be commenced within ten years next after the accrual of the cause of action and another, Ill. Rev. Stat. 1925, c. 83, § 19 (§ 18), providing that, when a person is out of that state when a cause of action accrues against him, the action may be commenced within the time limited by law after he has returned to the state; and if, after a cause of action has accrued, he departs from and resides out of the state, the time of his absence is no part of the time limited for the commencement of the action; but that the latter provisions shall not apply to any case when, at the time the cause of action accrued, or shall accrue, neither the party against, nor in favor of whom, the same accrued or shall accrue, were or are residents of that state.

In appellant's answer, after denials, it was affirmatively alleged that appellant never was indebted to respondent in any sum whatever, that he never was served with any process in the action referred to in plaintiff's complaint as provided by law, and that the judgment therein entered is void and was entered without jurisdiction of the court that attempted to enter the same; and then set up a certain stock transaction alleged to have been entered into in 1915, by which respondent purchased from appellant a contract to buy certain stock wherein it was agreed that the respondent should pay the balance due the First National Bank of St. Peter, Ill.; that, if respondent ever had any note, contract, or evidence of indebtedness of appellant, the same was obtained in the manner aforesaid, and was not an obligation of appellant to respondent, and that all amounts due from appellant thereon had been fully paid; that any cause of action arising on account of that transaction is barred by the statute of limitations; that this defendant...