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Latimer, 14 Ohio, 542. The waiving of the supreme court of Ohio, after referring process, and confession of judgment in favor to its prior adjudications, said: “Whether of the plaintiff below, was not, then, within the warrant of attorney can be executed for the authority conferred by the power of at the benefit of a holder of the note other than torney. Under the rule of interpretation the payee must depend upon the language of applicable to such instruments, we must the warrant itself. But it is an established conclude that the jurisdiction of the defend- principle that an authority given by warants below, obtained through the warrant of rant of attorney to confess a judgment attorney only, and the confession of judg. against the maker of the note must be clear ment by means thereof, exceeded the author and explicit and strictly pursued, and we ity conferred by the defendants in their cannot supply any supposed omissions of the power of attorney, and that the court, there parties. Cushman v. Welsh, 19 Ohio St. fore, erred in overruling their motion to set 536; Cowie v. Allaway, 8 T. R. 257; Hen
8 aside the judgment, irregularly obtained shail v. Matthew, 1 Dowl. P. C. 217; Foster against them.”
v. Claggett, 6 Dowl. P. C. 524; ManufacturIn Watson v. Paine, 25 Ohio St. 340, ers' & M. Bank v. St. John, 5 Hill, 497. which was an action upon a judgment based The power of attorney attached to the note on a warrant of attorney attached to a in controversy does not, in express language, promissory note, and which authorized any authorize a confession of judgment in favor
a attorney at law to confess judgment in favor of anyone, not even of the payee; but if of the holder of the note, the point was such authority might be implied as to the made that the warrant of attorney did not payee, we cannot, under the rule of a strict
, authorize the waiving of process or an ap- interpretation, extend that implication in pearance for the defendants in an action favor of the defendant in error, to whom the brought by an indorsee. The members of note was transferred by delivery. the supreme court of Ohio were divided in It will thus be seen that where it has been opinion on that point, and it was left unde adjudged by the court that a power of attorcided. The case went off upon another ney to confess a judgment may be executed ground, but McIlvaine, J., delivering the in favor of a party other than the payee, it judgment of the court, expressed his individ- has been in cases where authority was exual opinion that a power to confess judg. pressly conferred to confess a judgment in ment in favor of any holder of the note may favor of a legal holder or holder of the note. be exerted as well in favor of an indorsee as The decisions have all been based upon a
strict interpretation of the power granted, But in Clements v. Hull, 35 Ohio St. 141- without aiding any omission or defect in its 143, it was held that, under the Code of terms by liberal intendment or construction. Civil Procedure, a warrant of attorney au- In accordance with the views which we have thorizing judgment to be confessed in favor expressed, our conclusion is, that the warof the holder of a note could be executed in rant of attorney attached to the note sued favor of the equitable owner and holder, be- on did not authorize a confession of judgment ing the real party in interest. The court in favor of defendant in error, and, there said: “
“The scope of the power is not lim- having been no summons or other notice to ited in this case as it was in the case Cush- the plaintiff in error of the bringing of the man v. Welsh, 19 Ohio St. 536, in favor original action, the court of common pleas the legal holder only. The authority here acquired no jurisdiction over the person of given is 'to confess judgment in favor of the the plaintiff in error, and erred in rendering holder of said note,' and we think these a judgment against him.” words were intended, and should be con- Looking at the face of the note, the Nastrued, to embrace any holder who might tional Exchange Bank insists that, being lawfully prosecute an action on said note, payee, it was also the holder within the in his own name and for his own use." meaning of the warrant of attorney, how
The latest case in the supreme court of ever strictly construed; that nothing else Ohio is Spence v. Emerine, 46 Ohio St. 433, appearing than the note and warrant, a con440, 441, 15 Am. St. Rep. 634, 21 N. E. 866.fession of judgment in its favor was in conThere the note was payable to a named performity with law and usage in Ohio, as deson or bearer, and the warrant of attorney clared by the highest court of that state. authorized any attorney to appear for the We incline to think that that position is jusobligor in any court of record in Ohio, and tified by the above cases, when carefully conconfess judgment for the amount then due, sidered; and assuming such to be the law as and to release all errors and the right of ap- administered in Ohio,—which is the view peal. The confession was in favor of one to most favorable to the plaintiff in error,—the whom the note had been transferred by de question still remains whether the judglivery merely. The question was as to the ment, when sued on in another state, may power of the court to render the judgment. 'be collaterally attacked upon the ground
of the payee.
that the party in whose behalf it was ren- | either; and, consequently, that the court dered was not in fact the holder, because not was without jurisdiction to proceed except the real owner of the note? This question on legal notice to him, or without his apmust, we think, be answered in the affirma- pearance in person or by an attorney autive. It can be so answered without doing thorized to represent him. If law and usage violence to the Constitution or the laws of in Ohio were to the contrary, then such law the United States. While the words of the and usage would be in conflict with the Conwarrant of attorney might be held to em- stitution of the United States; for it is brace any holder, even the equitable owner, thoroughly settled that a personal judgment who might rightfully prosecute an action on against one not before the court by actual the note in his own name and for his own service of process, or who did not appear in use (Clements v. Hull, 35 Ohio St. 141), yet person or by an authorized attorney, would if it was true, as alleged, that in 1885 the be invalid as not being in conformity with Tiffin National Bank purchased, received, due process of law. and became the owner of the note, then the This whole subject was carefully considNational Exchange Bank could not there- ered in Thompson v. Whitman, 18 Wall. after rightfully sue on it in its name and 457, 463, 469, 21 L. ed. 897, 899, 901. That for its own use. Here, the confession of judg- was an action of trespass, brought in the ment was in behalf of the payee bank, which circuit court of the United States for the was not entitled to sue for its own use or to southern district of New York for taking receive the proceeds if it sold the note in and carrying away a certain sloop. The de1885, and never afterwards became the own- fendant, a New Jersey sheriff, had seized the er. The words, in the warrant of attorney, vessel, pursuant, as he claimed, to a statute "in favor of the holder of this instrument,” of New Jersey relating to the raking of ought not, as between the National Ex. clams, and proceeded against it before two change Bank and the obligors, to be conjustices of Monmouth county, New Jersey, strued as embracing the former after it by whom it was condemned and ordered to ceased to be the owner of the note, but, at be sold. Those justices had no jurisdiction, most, as only authorizing a confession of under the statute, to act in the premises, judginent in favor of the party who had be- unless the seizure and the offense both occome its real owner. It should not be sup- curred in that county. The record of the posed that the obligors intended, or that the case recited that the offense was committed payee bank ever understood them as intend and the seizure made in Monmouth county, ing, to authorize a confession of judgment in and the contention was that the record was favor of one who was not entitled, of right, conclusive, both as to the jurisdiction of the to demand payment from the obligors. That court and the merits of the case. In that view accords with justice, and, not being in case it was held to be competent for the consistent with the words in the warrant of complaining party to prove collaterally that attorney, it should be adopted.
the vessel was not seized in Monmouth counByles on Bills says that “holder is a gen- ty, and therefore that the facts necessary eral word, applied to anyone in actual or to the exercise of jurisdiction by the New constructive possession of the bill, and en Jersey justices did not exist, although their titled at law to recover or receive its con existence was recited or affirmed in the oftents from the parties to it.” Sharswood's ficial record made by them. Speaking by ed. 66. So in 1 Parsons on Bills & Notes it Mr. Justice Bradley, this court adjudged, in is said that “by the holder of negotiable the language of Story, that the Constitution paper is meant, in law, the owner of it; for “did not make the judgments of other states if it be in his possession without title or in domestic judgments to all intents and purterest he is, in general, considered only as poses, but only gave a general validity, the agent of the owner.” p. 253. So that faith, and credit to them, as evidence;" and, proof that the payee bank was not the own- upon an elaborate review of previous cases, er of the note when it brought suit in Ohio that "the jurisdiction of the court by which tended to show that it was not in law the a judgment is rendered in any state may be "holder" of the instrument within what questioned in a collateral proceeding in anmust be regarded as the true meaning of the other state, notwithstanding the provision warrant of attorney, and, therefore, that the of the 4th article of the Constitution and court was without authority to enter judg-law of 1790 [Rev. Stat. § 905, U. S. Comp. ment by confession in its favor against the Stat. 1901, pp. 677 et seq.), and notwithobligor. In other words, the defendant standing the averments contained in the recWiley could show collaterally that he was ord of the judgment itself.” There has been not legally before the court-as he was not, no departure in the decisions of this court in any just sense--if his appearance was en from the doctrines announced in Thompson tered and judgment confessed by one who v. Whitman, whether the question related to had, in fact, at the time, no authority to do 'courts of general or to courts of limited or
is said that by the holder of negotiable | ł
special jurisdiction. It has been repeatedly judgment against the obligors if the Naaffirmed. Knowles v. Logansport Gaslight tional Exchange Bank had in fact sold the & Coke Co. 19 Wall. 58, 61, 22 L. ed. 70, 72; note, and ceased, before the commencement Hall v. Lanning, 91 U. S. 160, 165, 23 L. of that suit, to own it or to be entitled to ed. 271, 273; Pennoyer v. Neff, 95 U. S. 714, receive the proceeds to its own use. It was, 732, 24 L. ed. 565, 572; Cole v. Cunningham, in such case, in legal effect, a personal judg. 133 U. S. 107, 112, 33 L. ed. 538, 541, 10 ment without service of process upon the Sup. Ct. Rep. 269; Grover & B. Mach. Co. v. defendants, and without their appearance in Radcliffe, 137 U. S. 287, 295, 34 L. ed. 670, person or by an authorized attorney. The 672, 11 Sup. Ct. Rep. 92; Thormann v. proceedings were wanting in due process of Frame, 176 U. S. 350, 356, 44 L. ed. 500, law. The obligors never consented to judg503, 20 Sup. Ct. Rep. 446; Bell v. Bell, 181 ment by confession in favor of one who was U. S. 175, 178, 45 L. ed. 804, 807, 21 Sup. not the owner of the note or entitled to reCt. Rep. 551; Andrews v. Andrews, 188 U. ceive its proceeds, and the warrant of attorS. 14, 34, 47 L. ed. 366, 370, 23 Sup. Ct. Rep. ney cannot be held to have authorized such 237. The general jurisdiction of the Ohio a confession. court undoubtedly embraced such a cause of Perceiving no error of law in the record action as was set forth in the suit on the the judgment must be affirmed. note. But we are of opinion that that court It is so ordered. had no authority or jurisdiction to render
(195 U. S. 427)
Statement by Mr. Justice Peckham:
The appellant filed his bill in this suit, in H. C. LEEDS, J. A. Johnson, Julia Johnson, the proper court of New Mexico, for the puret al., Appellees.
pose of obtaining relief against the defend
ants mentioned therein. The defendants dePleading--definiteness of allegations-gen- murred on several grounds, among which was
eral and special prayers for relief-trus- that the complainant's remedy, if any, was at tees ex maleficio injunction pendente law, and that the bill did not state a case for lite.
a court of equity. The demurrer was sus
tained and the bill dismissed, and the judg. 1. The failure to file notice of a mining loca
tion within ninety days after discovery is ment of dismissal was affirmed by the sustated with sufficient certainty to have been preme court of New Mexico, and the comdue to the failure to discover, until after that plainant thereupon appealed to this court. time, a conspiracy to defeat complainant's Among other things the bill averred that, rights, whereby his partner was to fail in his about May 7, 1893, the complainant and one duty to file such notice, by averments in the Johnson and the defendant Pilkey enbill that the location was made July 10, that
tered into the conspiracy was secret, and was entered
an agreement in Bernalillo into about October 1, and that the complain-county, New Mexico, by which they were ant would have complied with the mining to become partners in
in the enterprise laws had it not been for such conspiracy. mentioned in the agreement; and that, 2. Relief under a general prayer in a bill for the consideration mentioned therein,
which states all the facts should not be denied because it is asked upon a different Pilkey was to start out to discover, if theory of the law than that upon which a possible, and to locate for the purpose of special prayer for relief is based, where both operation by the parties, any mining claim prayers are based upon the same facts, clearly of gold, silver, or other metal; and that, in set forth in the bill.
order to enable Pilkey to carry out his por3. A bill makes a sufficient showing to entitletion of the agreement, he was to be furnished
complainant to treat the legal holders of a certain tools, etc., and some money. If he mine as trustees ex maleficio, and to recover from them, as such trustees, the materials discovered any such mine, it was his duty to taken from the mine, where it avers that their locate the same, and to send in to the other title was acquired under a relocation made in partners specimens of the ore, in order that pursuance of a fraudulent conspiracy with its value might be determined. Work was to complainant's partner, whereby that partner be begun within twenty days after the signwas to fail in his duty to perfect the original ing of the agreement. Any fraud by Pilkey
location. 4. A case for an injunction restraining further
was to forfeit his share, which was to be mining during the pendency of the suit is one-third interest in any mine discovered and made by a bill which seeks to treat as con- worked. structive trustees persons, some of whom are The agreement was to continue for a year, insolvent, who have acquired title to a land all discoveries and locations of any mining claim by a relocation made in pursuance of an alleged fraudulent and secret mines during that time by Pilkey were to be conspiracy with complainant's partner, where under the agreement mentioned. After the by that partner was to fail in his duty to per making of this agreement, Pilkey started out fect the original location.
to prospect and to discover, if possible, a [No. 10.)
mining claim of the character mentioned.
The parties were aware, at the time of the exArgued October 20, 1904. Decided December ecution of the agreement, of the existence of 5, 1904.
the place where Pilkey went for the purpose
of prospecting and discovering a mine, and A PPEAL from the Supreme Court of the that there possibly might be a valuable claim
Territory of New Mexico to review a at that place. Accordingly, Pilkey at once judgment which affirmed a decree of the Dis- went to the spot, and, on or about the 10th trict Court for Bernalillo County, in that of July, 1893, he discovered the claim at that Territory, sustaining a demurrer to, and dis- place, and it turned out to be a valuable missing, a bill filed for the purpose of ob-mine. He located the mine according to the taining relief against persons whose title to agreement, and posted the notice thereon pro mining property was acquired by virtue of a vided by the laws of the United States and relocation made in pursuance of an alleged New Mexico, and proceeded to do work there. fraudulent conspiracy to defeat complain- on pursuant to the provisions of those laws, ant's rights, whereby his partner was to fail but did not do all the work made necessary in his duty to perfect the original location. by them. The bill then alleges that Pilkey Reversed and remanded, with directions to commenced to sink a shaft or cut upon the overrule the demurrer and grant leave to mineral-bearing lode, and did work enough answer.
thereon to arrive at mineral-bearing ore in See sanie case below (N. M.) 63 Pac. 48. place, within less than ninety days from the time of taking possession of the lode; and it | tled, as against the defendants, to the possesis then averred that the parties were ready, sion and enjoyment of the same, and to the able, and willing in all things to comply with preferential right to acquire the legal title the laws spoken of, "and would have so done from the United States; and that the preexcept for the wrongful, fraudulent, and un- tended location of the mine under the name lawful acts of the defendants hereinafter of the Washington mine, by and in the names mentioned.” Some time about the 1st of Oc of the defendants named, was wholly inoptober, 1893, Pilkey, while so in possession of erative and void; and that Pilkey, by reason the lode, wrongfully and fraudulently con- of his participation in a fraudulent conspirspired, combined, and confederated with the acy with the defendants, forfeited all right defendants to defraud plaintiff; and they or interest in the said mine pursuant to the agreed that said Pilkey, in violation and agreement made by Pilkey with complainant fraud of the rights of the plaintiff in and to and Johnson; and complainant averred that the mine, should transfer, convey, and deliver he was equitably the owner of and entitled to possession of the mine to the defendants, or such interest. He further averred that the one of them, without the knowledge or con- defendants refused to permit complainant to sent of plaintiff and the said Johnson. This enter upon the property or to work the was done. It was also agreed that they same; and that the defendants claim title to should do all other acts necessary to trans- the mining property under and by virtue of fer the right to defendants. Pilkey was to their agreement with Pilkey, and their prehave a certain proportion of interest in the tended location of the same as the Washing. mine, and the defendants, the balance. The ton lode. It is further averred that the dedefendants also caused and procured the defendants were engaged in mining, extracting, fendant Pilkey to stop work upon the mine, and converting to their own use, the ores and under the agreement already referred to; and minerals contained in the mine, and had it was also agreed that Pilkey should fail mined and removed ores and minerals of and neglect to record, in the proper office, a great value therefrom, and had converted to copy of the location notice posted by him on their own use all such mineral; and that, unthe ground. The defendants also covered up less enjoined, they would remove all the ores and concealed the work which had been done and minerals, and thereby the entire subon the ground by Pilkey; and they posted an- stance and value of the property would be other notice thereon, and called the mine the destroyed, and the complainant would sus“Washington” mine, and filed a copy of the tain irreparable injury, as the defendants, or same for record, December 13, 1893, without some of them, were wholly insolvent. To the knowledge or consent of the plaintiff or this bill the defendants demurred, as already his copartner, Johnson; and they made the stated. location for the benefit of themselves as locators, under the mining laws of the United Mr. J. H. McGowan for appellant. States. For the purpose of concealing the Mr. W. B. Childers for appellees. interest of Pilkey in such pretended location, it was agreed that each of the four defend- Mr. Justice Peckham, after making the ants named should be entitled to a fifth in- foregoing statement, delivered the opinion of terest, and that Pilkey should be entitled to the court: the remaining fifth, which last-named inter- One phase of this controversy has already est should be claimed and held by Walker in been before this court in Lockhart v. Johntrust for Pilkey. Johnson subsequently son, 181 U. S. 516, 45 L. ed. 979, 21 Sup. Ct. transferred all his interest, under the agree- Rep. 665, which was an action of ejectment ment of copartnership between plaintiff, brought by the plaintiff (who is the complainJohnson, and Pilkey, to the complainant, who ant herein) to recover possession of the mine was, at the time of the commencement of the above mentioned from the defendants herein.
2. See Equity, vol. 19, Cent. Dig. $$ 1012, 1013.
, suit, the owner of Johnson's interest under It was there held that the plaintiff could not the assignment. The bill further states that, maintain an action, as the facts showed that after the removal by the defendants of the he had no legal title, and that the remedy he original location notice posted by Pilkey, as might have, if any, was in equity. already stated, the complainant procured a Upon the trial of the ejectment action the copy thereof, and had the same recorded in plaintiff offered to prove, in substance, the the office of the recorder of the county, on same facts as are set forth in this bill in reDecember 9, 1893. The complainant averred gard to Pilkey's action under the agreement that, by virtue of the premises, he became with plaintiff and Johnson, and the frauduand was, at the commencement of the suit, lent conspiracy entered into by the defendthe equitable owner of said mine, and of the ants for the purpose of defrauding the plaingold and silver ores therein contained, so distiff out of his right to such mine. The evi- . covered and located by Pilkey under the dence was objected to and excluded on the agreement; and that he was equitably enti- 'ground that it did not show any legal title