Opinion
Opinion filed March 19, 1935.
1. APPEAL AND ERROR.
Judgment obtained pursuant to power of attorney in note authorizing appointment of attorneys for purpose of confessing judgment was in nature of consent judgment, and, as such, not reviewable by appeal or writ of error.
2. JUDGMENT.
Consent to entry of judgment may be given by parties personally or by their attorneys, or legal representatives or by duly authorized agents.
3. CERTIORARI.
Certiorari
4. JUDGMENT.
Where judgment is obtained by fraud, is usurious, or attorney is without authority to act, relief may be had by bill in equity.
FROM SHELBY.Appeal from Circuit Court of Shelby County. — HON. A.B. PITTMAN, Judge.
T.B. PASSMORE, of Memphis, for plaintiffs in error.
WINCHESTER BEARMAN, of Memphis, for defendant in error.
Plaintiffs, Coley and wife, negotiated a loan from defendant, engaged in the business of lending money under the Small Loan Statute, evidenced by note for $140, dated July 22, 1930, and secured by a chattel mortgage. The note contains this provision: "If this note is not paid in full as due according to the terms thereof we hereby authorize and appoint Leo Bearman, an attorney of Memphis, Tennessee, as our attorney in fact, after it becomes due, to go before any justice of the peace in Shelby County, Tennessee, or into any court having jurisdiction of the amount and confess judgment in favor of the holder of the amount then due."
On January 23, 1934, suit was instituted upon said note before E.E. Strong, a justice of the peace, whereupon said attorney, in writing, accepted service for Mr. and Mrs. Coley, as their attorney in fact, and confessed judgment against them for $141.24. Plaintiffs, learning of said judgment on January 30, 1934, filed a petition in the circuit court asking that writs of certiorari and supersedeas issue for the purpose of having said judgment corrected. In said petition it was alleged that defendant had applied $122.79 of the payments made by them to service fees; that $7.20 would be a reasonable fee for the services rendered; and that, if the difference of $115.59 were credited on said note, they would only owe defendant $25.65.
The trial court sustained a demurrer to the petition and dismissed it. This was correct. This was in the nature of a consent judgment. Such consent may be given by the parties personally, or by their attorneys, or legal representatives, or by other duly authorized agents. 34 C.J., 132. Such a judgment cannot be reviewed by appeal or writ of error. 34 C.J., 407; Jones v. Williamson, 5 Cold. (45 Tenn.), 371; Williams v. Neil, 4 Heisk. (51 Tenn.), 279. In this character of case, certiorari is simply a substitute for an appeal. Tennessee Cent. R. Co. v. Campbell, 109 Tenn. 640, 75 S.W. 1012.
Where a judgment is obtained by fraud, is usurious, or the attorney is without authority to consent thereto, relief may be had by bill in equity. Jones v. Williamson, supra; Williams v. Neil, supra; Clay v. Finance Thrift Co., 160 Tenn. 390, 25 S.W.2d 578; Hermitage Loan Co. v. Daykin, 165 Tenn. 503, 56 S.W.2d 164; 34 C.J., 441.
Affirmed.