Spence v. Emerine

• Decision Date: 21 May 1889
• Parties: SPENCE v. EMERINE.
• Court: Ohio Supreme Court

21 N.E. 866

46 Ohio St. 433

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.’

Syllabus by the Court

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 no authority to confess judgment against the maker of the note in favor of the holder to whom the payee had transferred the note by delivery. (b ) In an action on the note it was error to render judgment against the maker thereof in favor of such holder, by virtue of such warrant of attorney, without summons or other notice to the maker of the bringing of the action.

Harrison, Olds & Marsh and Bowman & Bowman , for plaintiff in error.

McCauley & Weller , for defendant in error.

DICKMAN, J., (after stating the facts as above.)

Although, at common law, a note under seal is not negotiable, either by delivery or indorsement, so as to enable the holder to maintain an action upon it in his own name, the sealed note now under consideration became negotiable by statute, unless its negotiability was destroyed by the warrant of attorney attached to it. It is provided by section 3171 of the Revised Statutes that all bonds and promissory notes, for a sum certain, and payable to any person or order, shall be negotiable by indorsement thereon; ‘ and all such instruments, payable to a person or bearer, shall be negotiable by delivery.’ In this state it is held that if the note is in itself certain and perfect, without conditions, it may remain negotiable, although the power of attorney to confess judgment attached to and forming a part of the note may not, by its terms, operate in favor of an indorsee or transferee of the note. Osborn v. Hawley, 19 Ohio 130. Whether the warrant of attorney can be executed for the benefit of a holder of the note other than the payee must depend upon the language of the warrant itself. But it is an established principle that an authority given by warrant of attorney to confess a judgment against the maker of the note must be clear and explicit, and strictly pursued, and we cannot supply any supposed omissions of the parties. Cushman v. Welsh, 19 Ohio St. 536; Cowie v. Allaway, 8 Term R. 257; Henshall v. Matthew, 1 Dowl. 217; Foster v. Clagget, 6 Dowl. 524; Bank v. St....