Hamilton v. Schoenberger

1. Judgment: confession of : cannot be made by attokney. A confession of judgment pertains to the remedy, and is therefore governed by the law of this State. A contract made in anothor State authorizing a confession to be made by an attorney will not be enforced here.

Appeal from Benton District Court. The petition alleges that on the 29th day of January, 1876, the plaintiff, residing in the State of Pennsylvania, executed to the defendants a promissory note as follows: .“Januaey 29, 1876. . Two years after date I promise to pay to the order of Gr. and J. H. Shoenberger five thousand dollars, without defalcation, value received, with interest from date, payable semi-annually. And I do hereby empower any attorney of any court of record, within the United States or elsewhere, to appear for me and confess judgment against me as of any term for above smn, with costs of suit, and five per cent, attorney’s commission, and release of all errors, hereby waiving inquisition, and agreeing to the condemnation of any property that may be levied upon by any execution which may issue forthwith, on failure to comply with conditions hereof; also hereby waiving the benefit of the exemption laws, or any act of assembly relative to executions, now in force or hereafter to be passed.” ■ That on the 6th day of March, 1876, Gilchrist & Haines filed in the Benton District Court a petition on behalf of G. and J. ■II. Shoenberger, claiming of plaintiff judgment on said note, with stay of execution until January 29, 1878; that thereupon one G. W. Burnham, an attorney of said district court, appeared and filed an answer as follows: “ Comes now the defendant by his attorney, G. W. Burnham, duly authorized and empowered under and by virtue of a warrant of attorney, a copy of which warrant is set out in plaintiff’s petition, and to which reference is hereby made, and for answer to plaintiff’s petition says: That he admits the execution and delivery of the note set out in plaintiff’s petition according to the effect and tenor thereof as therein alleged, and that he consents that judgment be rendered against him in said District Court for the sum of five thousand dollars, to draw interest at 6 per cent from January 29, 1876, payable semi-ánnually, and for $250 attorney’s commission and costs, and that execution may issue on said judgment according to the terms of said note;” that on the 10th day of March, 1876, judgment was entered against plaintiff for the sum of five thousand dollars, and two hundred and fifty dollars attorney’s fees, with stay of execution until January 29, 1878, unless default be made in the payment of the semi-annual interest, at maturity, in which case execution may issue immediately; that at the time of filing said petition and answer plaintiff was a resident of the State of Pensylvania, and has in no manner authorized G. W. Burnham to appear for him except by the power contained in said note. Plaintiff asks that the judgment be declared void and canceled. The defendants demurred to this petition. Tho demurrer was overruled, and judgment was rendered canceling the judgment in favor of defendants against plaintiff. The defendants appeal.