Spence v. Emerine
| Decision Date | 21 May 1889 |
| Parties | SPENCE v. EMERINE. |
| Court | Ohio Supreme Court |
SPENCE
v.
EMERINE.
Supreme Court of Ohio.
May 21, 1889.
Error to court of common pleas, Sandusky county.
The defendant in error, Andrew Emerine, to whom a sealed note, payable to E. S. Clark, or bearer, ahd been transferred by delivery, took a judgment thereon against the maker, John Spence, plaintiff in error, by confession, under a warrant of attorney attached thereto, at the September term, 1887, of the court of common pleas of Sandusky county. The following is a copy of the note and warrant of attorney: ‘$250.00. Springfield, O., Dec. 17, 1885. On the 1st day of Oct., 1887, I promise to pay to E. S. Clark, or bearer, two hundred and fifty dollars, for value received, with 6 per cent. interest from and after Sept. 1, 1886, until due, and 8 per cent. after due; interest to be paid annually after maturity. And we jointly and severally hereby authorize and attorney at law, at any time after the above sum becomes due, with or without process, to appear for us in any court of record in the state of Ohio, and confess judgment against us for the amount then due hereon, with interest and costs, and to release all errors and the right of appeal. Witness our hands and seals. JOHN SPENCE. [Seal.] Post-office, North Hampton.’ By leave of this court, for the reasons set forth in the application of the plaintiff in error to file a petition in error, he filed such petition in error to reverse said judgment, and made the following assignment of error: ‘Said court of common pleas erred in rendering judgment in favor of the defendant in error against the plaintiff in error, without summons or other notice of the bringing of said action, by virtue of a warrant of attorney attached to the note sued on in said case below, because said warrant did not authorize the confession of a judgment in favor of said defendant in error, and said common pleas court, therefore, had no jurisdiction over the person of the plaintiff in error.’
1. A warrant of attorney to confess judgment should be strictly construed.
2. A warrant of attorney attached to a sealed note, payable to the payee or bearer, authorized ‘any attorney at law, at any time after the above sum becomes due, with or without process, to appear for us in any court of record in the state of Ohio, and confess judgment against us for the amount then due thereon, with interest and costs, and to release all errors and the right of appeal.’ Held: ( a) Such warrant of attorney conferred...
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