Stein v. Good
| Decision Date | 14 November 1885 |
| Citation | 115 Ill. 93,3 N.E. 735 |
| Parties | STEIN and others v. GOOD. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the appellate court, Second district.
Grier & Dryden, for appellants.
W. C. Norcross and Williams, Lawrence & Bancroft, for appellees.
This is an appeal from the appellate court for the Second district, affirming an order of the Warren circuit court, vacating a judgment entered in vacation, and quashing an execution issued thereon. The circuit court set aside the judgment in question absolutely, and quashed the execution issued thereon, for the reason no proof of the execution of the power of attorney, under which the confession was made, was filed with it.
The simple question presented by the record for determination is whether the court committed an error in doing so, for which the appellate court should have reversed the order. While the question is not entirely free from difficulty, we are inclined to answer it in the negative. The appellee maintains that the clerk, without such proof on file, had no power or jurisdiction to act at all, and that the judgment, therefore, was a nullity. The position of appellant is that the validity of the judgment did not depend upon the proof of the execution of the power of attorney, but rather upon the existence, and whether it authorized the confession of the judgment made under it; that as neither of these facts was questioned, and the justness of appellant's claim was not assailed, it was error to set aside the judgment. The authorities have been reviewed by counsel on both sides in support of their respective positions, but, as is not unfrequently the case, counsel have reached different conclusions. We do not deem it necessary to review the cases cited, for the purpose of determining whether they support the one view or the other. It may be admitted that if all the expressions to be found in the cases bearing on the question were collected together, and construed without regard to the particular facts in the cases to which they severally related, both positions might possibly find apparent support. Indeed, it would be no cause for surprise if they did. We fully recognize the general rule that where some mere irregularity has occurred in the confession of a judgment under a power of attorney, and it is assailed on that ground, it should not be set aside absolutely, for that reason, but should be permitted to stand a security until the case can be heard on its merits....
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......If it was sufficient, the testimony was unnecessary; if insufficient, it was unavailing. In Stein v. Good, 115 Ill. 93, 3 N. E. 735, it was argued that the validity of the judgment did not depend upon the proof of the execution of the power of ......
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