Opinion
Opinion filed June 25, 1930. Rehearing denied October 28, 1930.
1. APPEAL AND ERROR — necessity of preserving in bill of exceptions note and warrant of attorney to confess judgment. Where a judgment by confession is entered in term time, the note and warrant of attorney are not a part of the record unless preserved in a bill of exceptions.
2. APPEAL AND ERROR — right to consider note and warrant of attorney to confess judgment copied by clerk into common-law record. Where a judgment by confession is entered in term time, the note and warrant of attorney, not being preserved in a bill of exceptions, cannot be considered on appeal although the clerk has copied the same into the common-law record.
3. APPEAL AND ERROR — right to raise question in Supreme Court not raised in Appellate Court. Semble, if on appeal from a judgment by confession the Appellate Court should consider the note and warrant of attorney as properly before them although merely copied by the clerk into the transcript of the common-law record, and should reverse the judgment, it seems that the appellee although not having raised the question in the Appellate Court could raise it in the Supreme Court.
ON PETITION FOR REHEARING.4. APPEAL AND ERROR — denial of motion to file transcript of record of amendment to bill of exceptions. On appeal from a judgment by confession because of a refusal to vacate it, a motion will be denied for leave to file a transcript of the record of an amendment to a bill of exceptions to include the note and warrant of attorney, where neither of the transcripts show that the note and warrant were offered in evidence on the hearing of the motion to vacate the judgment and there is no showing that they contain all the evidence submitted on the hearing.
5. CONFESSION OF JUDGMENT — presumption of validity. All presumptions are in favor of the validity of a judgment by confession that was rendered in term time.
6. NEGOTIABLE INSTRUMENTS — liability of guarantor not requiring exhausting remedy against maker. The liability of guarantors of the payment of a note at maturity is not dependent upon the prosecution of a suit against the maker upon his refusal to pay.
7. CONFESSION OF JUDGMENT — no vacation without showing of meritorious defense. A motion to set aside a judgment confessed in term time appeals to the equitable jurisdiction of the court and will not be granted unless it is shown that the defendants had a legal or equitable defense to the debt for which the judgment was rendered, even though the power of attorney to confess was insufficient to give the court jurisdiction of the defendants.
Appeal by defendants from the City Court of Alton; the Hon. L. D. YAGER, Judge, presiding. Heard in this court at the May term, 1929. Affirmed. Opinion filed June 25, 1930. Rehearing denied October 28, 1930.
WM. P. BOYNTON, for appellants.
J.P. STREUBER, for appellee.
Appellee procured a judgment by confession, in term time, at the May Term 1928 of the city court. At the same term of court appellants' motion to set aside and vacate the judgment, as to them, was filed and at a subsequent term was overruled and they appealed to this court.
Their contention is that they never signed a warrant of attorney and by reason thereof the court was without jurisdiction as to them. The note and warrant of attorney have not been preserved in the bill of exceptions. Where a judgment by confession is entered in term time the note and warrant of attorney are not a part of the record unless preserved in a bill of exceptions. Davis v. Wirth, 249 Ill. App. 544; Davis v. Mosbacher, 252 Ill. App. 536. In the case at bar the note and warrant of attorney, not being so preserved, cannot be considered even though the clerk has copied the same into the transcript of the common-law record. People v. Faulkner, 248 Ill. 158.
While this point has not been raised by appellee, yet if we should consider the note and warrant of attorney as properly before this court and should reverse the judgment of the trial court, it would seem that appellee could raise the question in the Supreme Court. Hartford Fire Ins. Co. v. Peterson, 209 Ill. 112; Mulvihill v. Shaffer, 297 Ill. 549; Becker v. Billings, 304 Ill. 190.
In the state of the record the judgment must be affirmed.
ADDITIONAL OPINION ON PETITION FOR REHEARING
Appellants presented their petition for rehearing and with it a motion for leave to file a transcript of the record of an amendment to the bill of exceptions. The transcript simply states that the court found, from an inspection of the records and files in the case, that a certain note and warrant of attorney therein set out, are now in the files and were omitted from the original bill of exceptions, and the bill of exceptions is amended to include the same. Neither this transcript nor the original transcript of the bill of exceptions shows that the said note and warrant of attorney were offered in evidence on the hearing of appellants' motion to vacate the judgment, nor is there any showing that they contain all the evidence submitted to the court on that hearing. The judgment was rendered in term time and all presumptions are in favor of its validity. Boyles v. Chytraus, 175 Ill. 370. Even if the additional transcript were filed we could not presume that the note and warrant of attorney were offered in evidence and that no other evidence was heard by the court. It would be our duty to presume that there was sufficient evidence to support the court's ruling. The motion for leave to file the additional transcript is denied.
Appellants' motion to vacate the judgment was not verified or supported by affidavit. It did not attempt to show that appellants had a legal or equitable defense to the debt on which the judgment was rendered. They contend that it was unnecessary for them to show a meritorious defense because they signed no warrant of attorney, and they say they have a right to demand that all remedies be first exhausted against the maker of the note before calling upon them as guarantors for payment. They guaranteed the payment of the note at maturity, and are original promisors and could be sued upon the maker's failure to pay the note when due. Their liability is not dependent upon the prosecution of a suit against the makers. Beebe v. Kirkpatrick, 321 Ill. 612.
A motion to set aside a judgment confessed in term time, appeals to the equitable jurisdiction of the court and even though the power of attorney was insufficient to give the court jurisdiction of the defendants, the judgment will not be set aside unless it is shown that the defendants had a legal or equitable defense to the debt for which the judgment was rendered. Hier v. Kaufman, 134 Ill. 215-225; Farwell v. Huston, 151 Ill. 239-246; State Bank of Clinton v. Barnett, 151 Ill. App. 79; Pierson v. Linn, 101 Ill. App. 624; Berg v. Commercial Nat. Bank, 84 Ill. App. 614; Cassem v. Brown, 74 Ill. App. 346. The rule is otherwise where a judgment has been confessed in vacation. Desnoyers Shoe Co. v. First Nat. Bank, 188 Ill. 312. The petition for rehearing is denied.