Van Norman v. Gordon

• Decision Date: 02 March 1899
• Parties: VAN NORMAN v. GORDON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 576

53 N.E. 267

VAN NORMAN v. GORDON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1899

The warrant of attorney referred to in the opinion is as follows, viz.: "Know all men by these presents that whereas, the subscriber is justly indebted to George B Van Norman upon a certain promissory note, bearing even date herewith, payable one day after date, to Geo. B. Van Norman or order, at Wisconsin Marine & Fire Ins. Co. Bank, for the sum of five thousand 00/100 dollars, with interest at the rate of 7 per cent. per annum until paid Now, therefore, in consideration of the premises, I do hereby make, constitute, and appoint E.H. Bottum, Esq., or any attorney of any court of record, to be my true and lawful attorney, irrevocably, for me and in my name, place, and stead to enter my appearance before any court of record, in term time or in vacation, in any of the states or territories of the United States, at any time after said note becomes due, to waive the service of process and confess a judgment in favor of the said George B. Van Norman or his assigns upon the said note, for the above sum, or for as much as shall appear to be due, according to the tenor and effect of said note, and interest thereon at the rate of seven per cent. per annum, to the day of the entry of said judgment, together with costs, and also to file a cognovit for the amount that may be so due, and to release all errors that may intervene in entering up said judgment, or in issuing the execution thereon; hereby ratifying and confirming all which my said attorney may do by virtue hereof. Witness my hand and seal, at Milwaukee, this 18th day of January, A.D.1889. Gustavus E. Gordon. [ Seal.] In presence of E.H. Bottum."

It was agreed that the following facts might be taken as admitted so far as they are relevant and admissible under the pleadings: "First, that the defendant signed the note on which suit was brought in Wisconsin; second, that the defendant signed the warrant of attorney to confess judgment, on which judgment was confessed in Wisconsin; third, that at the time he signed the note and warrant of attorney, he was in, and was a resident of, the state of Wisconsin; fourth, that no personal service was made on the defendant in said Wisconsin suit; fifth, that the defendant never authorized Ogden & Hunter, attorneys at law, to appear or act for him in said suit, except as the said Ogden & Hunter may have been authorized so to do by the warrant of attorney to confess judgment set forth in the record of the Wisconsin suit; sixth, that the judgment was entered in the Wisconsin court, as set forth in the declaration and the exhibit thereto annexed, and has never been vacated or satisfied in any part; seventh, Ogden & Hunter, the attorneys who appeared and confessed judgment for this defendant in the Wisconsin court, were attorneys of a court of record."

COUNSEL

C.H. Sprague, for plaintiff.

Geo. B. Upham, for defendant.

OPINION

MORTON J.

The question is whether the judgment which the plaintiff seeks to enforce is entitled to full faith and credit. The answer depends on whether the court which rendered it had jurisdiction to render such a judgment. Public Works v. Columbia College, 17 Wall. 521. If it had, then the fact that it is a judgment by confession under a warrant of attorney is immaterial. Such judgments, when rendered by courts having jurisdiction of the cause and the parties, have all the qualities, incidents, and attributes of other judgments. Teel v. Yost, 128 N.Y. 387, 28 N.E. 353. See Henry v. Estes, 127 Mass. 474.

It does not appear from the facts that are agreed whether the laws of Wisconsin in force at the time authorized the entry of judgments pursuant to powers of attorney to confess judgment, or, if so, under what circumstances, or whether the court which rendered the judgment was a court of record or of general jurisdiction, or, if that is material, whether the defendant was a resident of Wisconsin when the judgment was rendered and the proceedings were instituted. No objection has been made, however, in respect to these matters, and the copy of the record which has been submitted to us shows that the court was a county court, with a clerk and seal, and was therefore a court of record, and may be presumed to have been a court of general jurisdiction. Knapp v. Abell, 10 Allen, 485, 487; Pringle v. Woolworth, 90 N.Y. 502. And in view of the further considerations that every presumption is to be made in favor of the regularity of the proceedings, that it is not now contended that the court had not jurisdiction to enter judgment pursuant to a warrant of attorney to confess judgment, and that such proceedings are well known at common law and in many states, we think that it may also be presumed that the court had jurisdiction to enter judgment upon a warrant of attorney to confess judgment, and that the proceedings were regular and according to the laws of Wisconsin. McMahon v. Association, 169 Mass. 539, 48 N.E. 339, and case...