Sweesey v. Kitchen

Chief Justice Agnew

delivered the opinion of the court,

There was a regular judgment in this case by the confession of an attorney at law; an officer of the court authorized generally to act for parties and in their stead. He may be called on to file his warrant of attorney. If it be entirely wanting in a power to appear and confess the judgment, the court in order to effectuate justice may strike off. the judgment, especially if the attorney be insolvent or otherwise irresponsible. But the setting aside of a judgment is a matter of sound discretion on the facts, and a refusal to do so is not in itself the subject of a writ of error. The writ lies to matters in the record only: Bunce v. Wightman, 5 Casey 335; Springer v. Springer, 7 Wright 518 ; Aurentz v. Porter, 12 Id. 335. The judgment here being regular on its face there is nothing to be reached by the writ. The court, however, thought it proper to require the defendant’s attorney to file the note containing the warrant to confess judgment. But that does not change the real state of the case. Though wanting in accuracy, because of some of the blanks not being filled, it is not wholly defective and void. It contained a warrant of attorney to confess judgment against some one, and this the attorney interpreted to mean the defendant himself. The word “me” was wanting in the blank, but certainly it could not mean another, for no other person is named or referred to, and the signer of the paper had no power or right to confess the judgment against another. The note and power were in one instrument. The note was the note of the defendant, and the debt was his, so that the person named in the note, or referred to by the pronoun, was the same person intended in the power, that is, himself. As to the absence of the pronoun “ I” in some of the blanks, nothing is substantially wanting, for the copulative conjunction “ and” supplies the necessity of repeating the pronoun “ I.” Sentences so constructed are not absolutely ungrammatical, as the idiom of the language admits of many things being understood though not directly expressed. That is eminently so in the use of the personal pronouns. Looking, therefore, at the whole writing, note and warrant in one instrument, we cannot say that the power was so totally wanting, that the attorney had no right to interpret it as a warrant to him to confess judgment for the defendant and against him. In such a case a court will leave the party to his remedy against the attorney, if he thinks the interpretation of the warrant is unsound and improper.

Judgment affirmed.