Opinion
(September Term, 1892.)
Judgment, Confession — Irregularity — Fraud — Parties.
1. A judgment may be set aside for irregularity only upon the application of a party thereto; if it is sought to set it aside for fraud, an independent action should be instituted by the party desiring such relief.
2. A confession of judgment containing a duly verified statement of defendant that the amount for which the judgment was authorized to be rendered was "$2,250, with interest at six per cent from 2 November, 1876, is justly due by him to the plaintiff," and "that said amount is due from him to the plaintiff on a bond under seal for borrowed money due and payable 2 November, 1876," is a compliance with the statute (The Code, sec. 571), prescribing the manner for confessing judgments. ( Davidson v. Alexander, 84 N.C. 621, and Davenport v. Morris, 95 N.C. 203, distinguished.)
MOTION tried before Bryan, J., at the August Term of JOHNSTON.
E. W. Pou for plaintiff.
F. H. Busbee for defendant.
It appeared upon the hearing of the motion that on 31 October, 1891, A. B. Vinson had confessed judgment in favor of his sister, Esther Vinson, for the sum of $2,250, with interest from 2 November, 1876, and that judgment was duly docketed in the office of the clerk of the court of Johnston County on the same day, to wit, 21 October, 1891.
The following is a copy of the judgment-roll which was introduced as evidence:
JUDGMENT BY CONFESSION.
"IN THE SUPERIOR COURT — Johnston County.
Esther Vinson v. A. B. Vinson.
I, A. B. Vinson, hereby confess judgment in favor of the above-named plaintiff for the sum of twenty-two hundred and fifty (139) ($2,250) dollars, and authorize the entry of judgment therefor against me, with interest at six per cent from 2 November, 1876. This confession is for the amount due on a bond under seal executed by the defendant to plaintiff, dated 1 November, 1876, and the defendant, A. B. Vinson, maketh oath:
"1. That said amount of $2,250, with interest at six per cent from 2 November, 1876, is justly due by him to the plaintiff.
"2. That said amount is due by him to the plaintiff on a bond under seal for borrowed money due and payable 2 November, 1876.
A. B. VINSON."
NORTH CAROLINA — Johnston County.
A. B. Vinson, being sworn, says that the facts set forth in the foregoing confession are true.
A. B. VINSON.
Sworn to and subscribed before me 31 October, 1891.
W. S. STEVENS, C. S.C.
On the back of the judgment-roll was indorsed:
"Upon the foregoing confession and affidavit of the defendant, it is adjudged by the court that the plaintiff recover of the defendant the sum of $2,250, with interest at six per cent from 2 November, 1876. This 31 October, 1891, at 4:30 o'clock p. m.
W. S. STEVENS, C. S.C."
Firmly stuck to the judgment-roll with mucilage was a paper-writing in the following words and figures:
"$2,250.
"One day after date, I promise to pay to Esther Vinson the sum of twenty-two hundred and fifty dollars for value received. This 1 November, 1876.
A. B. VINSON. [SEAL.]"
Witness: D. T. VINSON.
The plaintiffs obtained judgment against the defendant, A. B. (140) Vinson, for the sum of $112, with interest from 15 October, 1885, at eight per cent. This judgment was docketed 2 November, 1891, at 12 o'clock, m. The plaintiffs, J. M. Wilson and G. F. Uzzle, also obtained other judgments against the same defendant (A. B. Vinson), which were docketed subsequently.
The plaintiffs, J. M. Wilson and G. F. Uzzle, moved to set aside the confessed judgment, and have the same declared void:
1. Because it did not conform to the requirements of the statute.
2. Because sufficient facts were not, by the affidavit and confession, disclosed to enable the court to acquire jurisdiction.
3. Because the judgment was void upon the face of the facts set forth.
Motion dismissed. Plaintiffs excepted and appealed.
We are of the opinion that his Honor properly dismissed the motion made by Uzzle and Wilson to set aside the judgment confessed by A. B. Vinson in favor of Esther Vinson. If the ground upon which it sought to set it aside were irregularity only, none could be heard to impeach it upon such ground but a party thereto. Out of the many decisions to this effect, we select Dobson v. Simonton, 86 N.C. 492, and the cases there cited.
If it were sought to vacate this judgment upon the ground of fraud, it could not be attacked by motion in the cause, but only by an independent action. Sharp v. R. R., 106 N.C. 308. The ground upon which this motion is made, however, is that the confession of judgment is void, because of a failure to comply with the requirements of the statute, sec. 571 of The Code, which provides for the manner (141) in which judgments may be confessed without action.
The three grounds upon which the motion to vacate is made are all comprehended in the first, "because it did not conform to the requirements of the statute." Section 571 of The Code reads: "A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect: (1) It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor. (2) If it be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due." The third subdivision of this section does not concern our present inquiry.
The confession states the amount, $2,250, and authorizes the entry of judgment therefor, with interest at six per cent, from 2 November, 1876. This is in strict compliance with the first requisite of the statute.
It further states that it is for the amount due on a bond under seal, executed by defendant to plaintiff, dated 1 November, 1876; that it is justly due, and that it is for borrowed money. This seems to us to be, but for a little tautology, as concise a statement of the indebtedness, with the facts out of which it arose, as could be made. It sets forth the debt and the consideration, so that any other creditor may scrutinize the transaction and inquire into its honesty and good faith.
In Davenport v. Alexander, 84 N.C. 621, where this statute was lucidly considered and construed, the confession was for a certain sum, "said to be a debt now justly due said plaintiff by said defendant, arising from the acceptance of a draft, of which the following is a copy," etc. The draft was drawn upon and accepted by J. A. Smith. The confession of judgment was made upon this draft by J. A. Smith, president of the Empire Mining Company, and it was sought to bind the property of this company by the judgment so confessed. The (142) demands of the statute were in that case, said to be, what was the real consideration of that draft, the time and manner of its creation. The information upon those points was meagre and insufficient. In the case of Davenport v. Morris, 95 N.C. 203, the attempted confession was upon a note, the consideration of which was not stated, and upon an open account appended to the affidavit, but not made a part of the same.
Without in any way relaxing the strictness of the rule adopted for the construction of these confessions of judgment, for the reasons given in the above-cited opinions we hold that the confession in the case before us is a full compliance with the terms of the statute. The bond, which is presumed to have been in possession of the oblige, is fully described in the affidavit, and a bond of the precise description of that in the confession is affixed thereto to make up the judgment roll.
AFFIRMED.
Cited: Bank v. Cotton Mills, 115 N.C. 523; Smith v. Smith, 117 N.C. 351; Rawles v. Carter, 119 N.C. 597; R. R. v. Stroud, 132 N.C. 415; Moody v. Wicker, 170 N.C. 544.