Summary
In Bonnett-Brown Sales v. Utt, 323 Mo. 589, 19 S.W.2d 888, it was held there was a failure of the record to show any action on the warrant of attorney, by any one authorized to act.
Summary of this case from Picking v. Local Loan Co.Opinion
August 6, 1929.
1. JUDGMENT: Foreign: Jurisdiction. A defendant, sued on a judgment rendered by a court in another state, may challenge the jurisdiction of the court which rendered it, and the court may consider the evidence and admissions of the parties bearing upon the question.
2. ____: Cognovit: Confession by Attorney: Unsupported by Warrant of Authority: Jurisdiction. The power of an attorney to confess judgment against the maker of a note must be construed with minute strictness; and where the defendant, the maker of a note, was a resident of this State and at no time within the state where the judgment in favor of the payee was rendered, was not served with process and did not appear, a judgment rendered against him in such other state reciting that "also comes defendant, who by virtue of defendant's warrant of attorney files herein a cognovit confessing the action of plaintiff against the defendant," is not supported by the warrant of authority contained in defendant's note reciting that "the undersigned hereby constitutes irrevocably any attorney of any court of record to appear for the undersigned in any court, without process and confess a judgment in favor of the holder of this instrument, against the undersigned, for such an amount as may appear to be due and unpaid thereunder." The judgment fails to show that an attorney of the court rendering it appeared for the defendant and confessed judgment, as provided in the note. The court therefore had no jurisdiction over defendant, and a suit against him based on such judgment cannot be maintained in the courts of this State.
3. ____: Rendered in Another State: Confession by Attorney: Valid in Such State: Jurisdiction Over Defendant. A judgment rendered by a court of another state against a citizen of this State may be valid there, and enforcible against property of the defendant situated in that state, but it is of no force or effect in this State if the court rendering it did not acquire jurisdiction over the defendant.
Corpus Juris-Cyc. References: Judgments, 34 C.J., Section 1614, p. 1138, n. 57; p. 1140, n. 60; Section 1616, p. 1142, n. 72.
Appeal from Benton Circuit Court. — Hon. Charles A. Calvird, Judge.
AFFIRMED.
Bohling Bohling for appellant.
(1) The Illinois judgment sued on is entitled to full faith and credit in Missouri. Respondent admitted the Illinois court rendering the judgment was a court of record and of general civil jurisdiction and competent to enter the judgment sued on if it had jurisdiction of the parties and subject-matter (thus doing away with the necessity of introducing in evidence the Illinois law — Sec. 1, Art. 4, and Sec. 34, Art, 4, Ill. Const., and Secs. 389 and 390, Ch. 37, Ill. Rev. Stats, 1921). In Illinois a judgment on confession is valid and enforcible. Sec. 88, Ch. 110, p. 2684, Ill. Rev. Stats. 1921; Roche v. Beldam, 119 Ill. 320. The judgment is entitled to full faith and credit in Missouri and all other states of the Union. Sec. 1, Art. 4, U.S. Constitution; Art. 6, par. 2, U.S. Constitution; Sec. 1519, U.S. Stats. 1918, R.S. 1919, p. 4283. The record presents no evidence in respondent's behalf constituting a valid defense to appellant's suit on its Illinois judgment. Appellant's Illinois judgment is entitled to full faith and credit in Missouri, and appellant should have its judgment thereon in the Missouri courts. Jarrett v. Sippely, 175 Mo. App. 201; Crim v. Crim, 162 Mo. 554; Vennum v. Martens, 119 Mo. App. 461; National Bank v. Farnum, 176 U.S. 640, 44 L.Ed. 619; Crapo v. Kelly, 16 Wall. 619, 21 L.Ed. 434; Hanley v. Donoghue, 116 U.S. 3; Bigelow v. Old Dominion Co., 225 U.S. 111; Green v. Van Buskirk, 7 Wall. 140; Hampton v. McConnell, 3 Wheat. 234, 4 L.Ed. 378. (2) The Illinois judgment, based on a note payable in Illinois, is founded on an Illinois contract, and governed by the Illinois law. Smoot v. Judd, 161 Mo. 684; Vennum v. Martens, 119 Mo. App. 464; Jarrett v. Sippely, 175 Mo. App. 201; Thrower Bros. Co. v. Hamilton, 179 Mo. 205; Central Nat. Bank v. Cooper, 85 Mo. App. 383; Clark v. Porter, 90 Mo. App. 143; Johnson v. Machine Co., 144 Mo. App. 436.
Henry P. Lay for respondent.
(1) A power in a warrant of attorney to confess judgment must be construed with minute strictness, and the proceedings thereunder, if valid at all, must be within the strict letter of the warrant of attorney. First National Bank v. White, 220 Mo. 717, 132 Am. St. 612, 16 Ann. Cas. 889; 34 C.J. 106; Grover, etc., Co. v. Radcliffe, 137 U.S. 287. Therefore, the warrant in the instant case empowering "any attorney of any court of record" to appear and confess judgment, will not support the judgment, which fails to show that appearance was entered and judgment confessed by an attorney of record of the municipal court. Nor does a warrant to confess judgment "against the undersigned" being the "Cole Camp Courier, by O.F. Utt, duly authorized agent," support the judgment against O.F. Utt. (2) The Illinois judgment was subject to attack in this action by proof of facts showing in fact that that court did not have jurisdiction over the defendant. Napton v. Leaton, 71 Mo. 358; Barlow v. Steel, 65 Mo. 611; Marx v. Fore, 51 Mo. 69. (3) A foreign judgment, based upon a warrant of attorney to confess judgment, is subject to attack when sued upon in another jurisdiction, and is not protected by Section 1 of Article 4 of the Federal Constitution. Grover, etc., Co. v. Radcliffe, 137 U.S. 287. (4) The validity of a foreign judgment based upon a warrant of attorney is governed by the laws of the state in which the warrant of attorney was executed. Acme Food Co. v. Kirsch, 166 Mich. 433, 38 L.R.A. (N.S.) 814. (5) The Illinois court had no jurisdiction over the defendant, and its judgment is therefore void. First Nat. Bank v. White, 220 Mo. 717. (6) A warrant of attorney to confess judgment contained in a written instrument is against the public policy of this State, and void when executed, and can confer no jurisdiction upon any court to enter judgment thereon. First Nat. Bank v. White, supra.
This is a suit on a judgment rendered in the Municipal Court of Chicago, Illinois, in the sum of $375. A jury was waived, and the trial, before the court, resulted in a finding and judgment for the defendant. Plaintiff's appeal brings the case here for review, because, under the pleadings, the constitutional rights of the parties are involved.
Omitting formal parts, the pleadings read as follows:
"PETITION.
"Plaintiff states that it is a corporation duly organized under the laws of the State of Illinois, and as such has power to sue and liable of being sued.
"Plaintiff, for its cause of action, states that on the 3rd day of March, 1925, in the Municipal Court of Chicago, held in the city of Chicago, in the County of Cook, and State of Illinois, it recovered a judgment against the defendant for the sum of three hundred and seventy-five dollars ($375); that said court is a court of record and had jurisdiction of said cause; that plaintiff now sues upon said judgment in this court.
"WHEREFORE, plaintiff prays judgment against the defendant for the sum of three hundred and seventy-five dollars ($375), with six per cent interest thereon from the 3rd day of March, 1925, and for costs of suit.
"ANSWER
"Comes now the above named defendant, and for answer to plaintiff's petition denies each and every allegation therein contained.
"And, further answering, the defendant says that the Municipal Court of Chicago did not have jurisdiction either over the subject-matter of the action or the person of this defendant, so that the pretended judgment of said court, if rendered, was and is void.
"That said alleged and pretended judgment was rendered, if at all, without service of summons upon this defendant, and without the appearance of the defendant or any person authorized to appear for him.
"That the defendant had and has a good and meritorious defense to the pretended cause of action upon which said pretended judgment was based.
"And that said pretended judgment of the said municipal court should not be enforced or given any faith or credit in this State, because to do so would deprive this defendant of his property without due process of law, contrary to the provisions of Section 30 of Article Two of the Constitution of Missouri, and Section 1 of Article XIV of the Constitution of the United States.
"REPLY
"Plaintiff states that the cause of action herein arises upon a judgment for a debt confessed by the defendant on a warrant of attorney through the filing of a cognovit therein confessing the action; and that said judgment was rendered by a court of competent jurisdiction of the State of Illinois.
"Plaintiff further states that under the laws of the State of Illinois, to-wit, Chapter 110, Section 88, of the Illinois Revised Statutes for the year 1921, it is provided: `Any person for a debt bona-fide due may confess judgment by himself or attorney duly authorized, either in term time or vacation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof, become liens in like manner and extent as judgments entered in term;' and that the Supreme Court of the State of Illinois, in the case of Roche v. Beldam, 119 Ill. 321, has held a judgment so entered by confession valid and binding; and that the cause of action against the defendant in Illinois is now merged into the judgment which constitutes the cause of action in this court.
"Plaintiff further states that the judgment constituting the cause of action herein complies with the requirements of Section 1519 of the Statutes of the United States of 1918, as set forth in Volume Three, at page 4283, of the Revised Statutes of Missouri for the year 1919.
"Plaintiff pleads Article Four, Section One, of the Constitution of the United States, which provides that `full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.'
"Plaintiff further states that if this court should hold the judgment rendered in the State of Illinois, and which constitutes the cause of action before this court, of no force and effect, it would violate the said constitutional provision above quoted, and deprive this plaintiff of property without due process of law, and deny to this plaintiff the equal protection of the law in contravention of Section One, Article Fourteen, of the Amendments to the Constitution of the United States, and Article Two, Section Thirty of the Constitution of the State of Missouri.
"Plaintiff further states that to permit defendant to interpose defenses available to defendant in the cause of action in Illinois, which has been merged into the judgment herein sued on, and which such defenses defendant in his answer seeks to interpose, would deprive this plaintiff of its property without due process of law in contravention of Section One, Article Fourteen of the Amendments to the Constitution of the United States, and Article Two, Section Thirty of the Constitution of the State of Missouri; and deny to this plaintiff the equal protection of the laws guaranteed by Section One, Article Fourteen of the Amendments to the Constitution of the United States.
"Plaintiff, for further reply, denies each and every allegation of new matter in said answer contained."
Plaintiff's Exhibits A and B, being the note sued on, and a copy of the judgment rendered thereon, in the Municipal Court of Chicago, Illinois, are in the following form:
"EXHIBIT A.
"Oct. 27th, 1922.
"For value received, the undersigned promises to pay to the order of BONNET-BROWN SALES SERVICE (a corporation) the principal sum of $340, in equal monthly installments of $18.89, payable on or before the fifteenth day of each month beginning Dec. 1, 1922, at the office of said Bonnet-Brown Sales Service, at Chicago, Illinois, or at such other place in the United States as the legal holder hereof may, from time to time, in writing appoint.
"And if default be made in the payment of any of said installments, the entire principal sum above mentioned, or any balance that may appear to be unpaid thereon, shall thereupon become due and payable immediately. The undersigned hereby constitutes irrevocably, any attorney of any court of record to appear for the undersigned in any court without process and confess a judgment in favor of the holder of this instrument, against the undersigned, for such amount as may appear to be due and unpaid thereunder, together with court costs and reasonable attorney fees, and waives all errors and right of appeal from said judgment and consents to immediate execution thereon. The undersigned hereby also waives and releases any benefit, relief or protection of or from any exemption, valuation or stay laws which the undersigned might otherwise claim.
"(Signed) COLE CAMP COURIER, By (Signed) O.F. UTT, "(Duly Authorized Agent.) "(Signed) COLE CAMP. (City) "(Signed) Mo. (State)
"EXHIBIT B.
"Now comes the plaintiff in this cause; also comes the defendant, who by virtue of defendant's warrant of attorney files herein a cognovit confessing the action of the plaintiff against the defendant and that the plaintiff has sustained damages herein against the defendant in the sum set forth in said cognovit.
"Whereupon the plaintiff moves the court for final judgment herein. It is therefore considered by the court, that the plaintiff have and recover of and from the defendant, O.F. Utt, the damages of the plaintiff amounting to the sum of three hundred and seventy-five dollars ($375) in form as aforesaid confessed, together with the costs by the plaintiff herein expended and that execution issue therefor."
The plaintiff also offered in evidence Sec. 88, Chap. 110, p. 2684, Revised Statutes of Illinois for 1921, and the decision of the Supreme Court of Illinois in the case of Roche v. Beldam, 119 Ill. 320. The statute mentioned provides that:
"Any person for a debt bona-fide due may confess judgment by himself or attorney at the trial, either in term time or vacation, without process. Judgments entered in vacation shall be of like force and effect, and, from the date thereof, become liens in like manner and to the extent of judgments entered in term."
It was admitted at the trial that the Municipal Court of Chicago, Illinois, was, at the time in question, a court of record and of general civil jurisdiction, and competent to render the judgment sued on, if it had jurisdiction of the parties and subject-matter; also, that O.F. Utt is the owner of the Cole Camp Courier.
Subject to plaintiff's objections as to the competency and relevancy of such proof, it was also admitted "that the note, marked Exhibit A. was executed at Cole Camp, Missouri; that on October 27, 1922, and at all times thereafter, O.F. Utt was a resident of Cole Camp, Missouri; that the place of business of the Cole Camp Courier was at Cole Camp, Missouri; that at no time since October 27, 1922, was O.F. Utt or the Cole Camp Courier either a resident of or at any time within the limits of the State of Illinois; and that no other warrant of attorney, or authority of any kind, to confess judgment, was signed by the defendant, except the one contained in Exhibit A.
I. Relying on the full-faith-and-credit clause of the Constitution of the United States and the act of Congress in pursuance thereof, appellant (plaintiff below) contends that the trial court erred in permitting the defendant to attack, by parol evidence, the jurisdiction of the Municipal Court Jurisdiction. of Chicago, Illinois, in which the judgment sued on was rendered, and in basing its finding and judgment for the defendant upon such evidence.
In the early case of Marx v. Fore, 51 Mo. l.c. 74, it was held that: "Citizens are not driven to foreign states to protect their rights. If they have a legal right, or are being subjected to a wrong, they may look for protection to the tribunal having jurisdiction over them and the subject-matter, if the opposite party has placed himself within this jurisdiction."
While the rule followed in that case limited the right to attack the jurisdiction of the courts of other states to cases in which equitable defenses were interposed, the Supreme Court of the United States and the courts of practically all of the states, have long since disregarded that limitation. As said by RAGLAND, C., in the case of Stuart v. Dickinson, 290 Attack on Mo. 516, l.c. 547, 235 S.W. l.c. 455: "Neither the Judgment. constitutional provision that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered, and accordingly when a judgment recovered in one state is pleaded or presented in the courts of another state, whether as a cause of action or a defense or as evidence, the party sought to be bound or affected by it may always impeach its validity and escape its effect by showing that the court which rendered it had no jurisdiction over the parties or the subject-matter of the action. And the recitals in the record of any such judgment, on the subject of jurisdiction, may be controverted by extraneous evidence." See cases cited; also Sewing Machine Co. v. Radcliffe, 137 U.S. 287; Cooper v. Newell, 173 U.S. 555.
It seems perfectly clear, therefore, that the trial court properly permitted the defendant to challenge the jurisdiction of the Illinois court, which rendered the judgment sued on, and properly considered the evidence and admissions of the parties bearing upon that question. It is not claimed that the defendant was served with process in the suit on the note in Illinois, nor that the defendant entered his appearance therein. On the contrary, it is admitted that the note (Exhibit A) was executed in Cole Camp, Missouri, and that the defendant was not at any time thereafter a resident of Illinois, nor within the limits of that State. The note as shown above, contains the following provisions: "The undersigned hereby constitutes irrevocably, any attorney of any court of record to appear for the undersigned in any court, without No process and confess a judgment in favor of the Appearance. holder of this instrument, against the undersigned, for such amount as may appear to be due and unpaid thereunder, together with the court costs and reasonable attorneys fees, and waives all errors and right of appeal from said judgment and consents to immediate execution thereon." The recital in the judgment (Exhibit B). also shown above, is as follows: "Now comes the plaintiff in this cause; also comes the defendant, who by virtue of defendant's warrant of attorney files herein a cognovit confessing the action of the plaintiff against the defendant and that the plaintiff has sustained damages herein against the defendant in the sum set forth in said cognovit." Thus, it plainly appears that the judgment sued on is not supported by the warrant of attorney contained in the note, because the judgment fails to show that an attorney of the Municipal Court of Chicago, Illinois, appeared for the defendant and confessed judgment against defendant, as provided in the note. In the case of Bank v. White, 220 Mo. l.c. 727, 120 S.W. l.c. 38, Judge GRAVES said: "It must be apparent that the power of such an instrument as the one before us should be construed with minute strictness. Not only so but the proceedings thereunder, if valid at all, must be within the strict letter of the warrant of attorney. [23 Cyc. 705; Cushman v. Welsh, 19 Ohio St. 536; Sewing Machine Co. v. Radeliffe, 137 U.S. 287; Bank v. St. John, 5 Hill (N.Y.) l.c. 500; Grubbs v. Blum, 62 Tex. 426; Tidd's Practice (4 Am. Ed.), 551.]
"If the court acquired jurisdiction of the defendant at all it was by virtue of the terms of the instrument before us. And if the court could act at all it must act within the strict purview of the instrument giving it jurisdiction, and enter a judgment as by the terms of the instrument directed, and not otherwise. [Cushman v. Welsh, supra,]" In this connection, see also Crim v. Crim. 162 Mo. l.c. 559, 63 S.W. l.c. 493, relied on by appellant. It follows, from what has been said, that the court which rendered the judgment sued on did not have jurisdiction over the defendant.
It may be conceded that the note was an Illinois contract, because of the provision for its payment in Illinois; that, under the Illinois statute and the warrant of attorney contained in the note, any attorney of the Municipal Court of Chicago was authorized to appear for the defendant and confess judgment against him, Valid without process; and that the Supreme Court of Where Illinois held, in the case of Roche v. Beldam, 119 Rendered. Ill. 320, that the record of a judgment so rendered "imports verity, and cannot be contradicted by parol," and that the record "is conclusive upon all parties until altered or set aside by a court of competent jurisdiction." The judgment sued on may be perfectly valid in Illinois and enforced against any property of the defendant situated in that state. But, in any event, it is void and of no force or effect in this state, for the reason that the Municipal Court of Chicago, in which it was rendered, did not acquire jurisdiction over the defendant. [Sewing Machine Co. v. Radcliffe, supra; Cooper v. Newell, supra; Stuart v. Dickinson, supra.]
II. In view of this conclusion, it becomes unnecessary to consider other questions presented in the briefs and oral arguments of counsel.
The judgment rendered below is affirmed. Davis and Cooley, CC., concur.
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.