Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

The conduct of this woman in her association with Whitney, an unmarried man wholly without manly instincts, and the sacrifice of all she had for him, shows how blindly a woman may become infatuated with a villain and to what extremes she will sometimes go to prove her devotion to him. However much courts may feel inclined to protect such persons against the consequences of their own folly, clearly established facts and well recognized principles of law cannot be ignored in order to do so.

After a careful consideration of the arguments of counsel and the evidence in this record we are convinced that the decree of the circuit court cannot be sustained. It will accordingly be reversed, and the cause remanded to that court with directions to dismiss the original bill and grant the relief prayed in the cross-bill.

Reversed and remanded.

LEOPOLD MAYER

V.

MINA PICK.

Opinion filed October 24, 1901.

1. CONFESSION OF JUDGMENT-a joint warrant of attorney does not authorize confession against one. A joint warrant of attorney does not authorize confession of judgment against the surviving maker of a note, even though the note is, in terms, joint and several.

2. SAME--when a judgment by confession is properly vacated. If a joint and several note is not due at the time judgment is confessed thereon under a warrant of attorney which is joint, only, the judgment must be vacated, on motion, where it is shown that one of the joint makers was dead before judgment was confessed.

Mayer v. Pick, 92 Ill. App. 189, affirmed.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. F. DUNNE, Judge, presiding.

[blocks in formation]

ALBERT H. MEADS, for appellant:

The warrant of attorney and note are to be construed together in arriving at the intention of the parties executing the same. 18 Am. & Eng. Ency. of Law, 895; Clark v. Woodruff, 83 N. Y. 523; American Express Co. v. Pinckney, 29 Ill. 392; LeRoy v. Beard, 18 How. 466; Holmes v. Parker, 25 Ill. App. 225.

The joint warrant of attorney was not determined, as to the survivor, by the death of one of the makers of the power. Croasdell v. Tallant, 83 Pa. St. 193.

The joint warrant of attorney was sufficient to authorize the confession of judgment against either or both of the makers of the note. Croasdell v. Tallant, 83 Pa. St.

193; Knox v. Bank, 57 Ill. 330.

KRAUS & HOLDEN, for appellee:

The warrant of attorney being joint, did not authorize the confession of judgment against appellee alone, after the death of the other joint donor of the power. Bank v. St. John, 5 Hiil, 497; Hunt v. Chamberlain, 8 N. J. L. 336; Gee v. Lane, 151 East, 592; Kahn v. Lesser, 97 Wis. 217; Rau v. Alderson, 7 Taunt. 453.

The original certificate of evidence not purporting to contain all the evidence on the motion to vacate the judgment, the action of the court in that respect is presumed to have been within its discretionary powers. Wright v. Griffey, 146 Ill. 394; Bolton v. McKinley, 22 id. 203; Railway Co. v. Calumet, 151 id. 512; Wheeler Chemical Works v. Alexander, 30 Ill. App. 502.

Per CURIAM:

When this case was decided by the Appellate Court for the First District the following opinion of that court by ADAMS, P. J., was rendered:

"January 16, 1900, judgment by confession was rendered in favor of appellant, and against appellee, on the following promissory note and by virtue of the following warrant of attorney:

CHICAGO, ILL., August 22, 1899.

'$2000. "On or before one year after date, for value received, we jointly and severally promise to pay to the order of ourselves the sum of $2000, with interest thereon at the rate of six per centum per annum, after date, until paid, payable semi-annually. Both principal and interest are payable in gold coin of the United States of America of the present standard of weight and fineness, at the banking office of Leopold Mayer & Son, Chicago.

"It is an express condition of this note that in case of default in the payment of the interest, or any part thereof, to accrue thereon when due, the principal sum of this note shall, at the option of the legal holder hereof, at once become absolutely due.

“The payment of this note is secured by a deed of trust to Nathaniel A. Mayer, of even date herewith, on real estate in Cook county, Illinois. And to further secure the payment of said amount, we hereby authorize, irrevocably, any attorney of any court of record to appear for us in such court, in term time or vacation, at any time after date hereof, and confess a judgment without process in favor of the legal holder of this note, for the amount unpaid upon said principal note, with interest thereon up to the day of entering such judgment or any part thereof, together with costs and $40 attorneys' fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof.

"Endorsed:

SIMON PICK,

MINA PICK.'

SIMON PICK,
MINA PICK.

"An execution was issued on the judgment and was returned no part satisfied. February 3, 1900, the court, on motion of appellee's attorney, vacated the judgment and quashed the execution, with leave to appellee to plead instanter. Appellee demurred to appellant's declaration, and the court sustained the demurrer and dismissed the suit at appellant's costs. From the judgment so rendered this appeal was taken.

"It appearing by the declaration that the note was not due until about seven months after the time of filing the

declaration, the court, looking solely to the declaration, could not do otherwise than sustain the demurrer. The main question, therefore, is whether the court erred in vacating the judgment.

"It was admitted, on the motion to vacate the judg ment, that Simon Pick, whose name is signed to the note and warrant of attorney, died January 3, 1900. While the note is, in terms, the joint and several note of the makers, the warrant of attorney is clearly joint. The language is, 'We hereby authorize any attorney of any court of record to appear for us in such court, in term time or vacation, at any time after date hereof, and confess judgment,' etc. We are of opinion that the warrant of attorney, being joint, does not authorize a severa! judgment against one of the makers. Gee v. Lane, 15 East, 592; Man. and Mech. Bank v. St. John, 5 Hill, 497; Hunt v. Chamberlain, 8 N. J. L. 336; Kahn v. Lesser, 97 Wis. 217; Frye v. Jones, 78 Ill. 627; Whitney v. Bohlen, 157 id. 571; Blake v. State Bank of Freeport, 178 id. 182.

"Gee v. Lane seems to be the leading case on the subject. In that case there was a joint and several bond. The warrant of attorney was executed by the obligors, John Lane and William Gee, and was as follows: "To appear for us, John Lane and William Gee, and to receive a declaration for us in an action of debt for £2400 upon a certain bond bearing even date herewith, whereby the said John Lane and William Gee are jointly and severally become bound to the said Thomas Gee in the penal sum of £2400 and thereupon to confess the same action, or else to suffer judgment by nil dicit to pass against us in the said action,' etc. William Gee having died, the obligee moved for leave to enter up judgment against Lane, the survivor, but the court denied the motion, Lord Ellenborough, C. J., saying: 'An action to be brought against us must mean a joint action. In the case cited, the warrant of attorney executed by the two was to enter judgment against me, which, construed severally, might serve

the purpose; but I am afraid that an authority by two to enter judgment in an action against us will not warrant a judgment against one alone. The authority must be pursued; we cannot violate it.'

"In Hunt v. Chamberlain, supra, the bond was executed by two obligors and was joint and several. The warrant of attorney was to any attorney to appear to an action to be brought against us. After the death of one of the obligors judgment by confession was entered against the other. The court, following Gee v. Lane, supra, reversed the judgment, and say, in substance, that the King's Bench has uniformly adhered to the decision in Gee v. Lane, and that the court of common pleas has followed that decision since the year 1751. The court further say: "The present warrant empowers an attorney to appear in an action against Daniel Hunt and Ralph Hunt both, and extends no further. Its language is, 'to an action to be brought against us, and confess judgment against us. They were willing to stand together in judgment and to meet an execution by their joint means and exertions, but it gives no authority for placing one of them in judgment by himself, and leaving him all alone to breast an execution for the whole sum, while the means and estate of the other remain untouched and undisturbed.'

"In Man. and Mech. Bank v. St. John, 5 Hill, 497, the warrant was signed by three persons, and the power was 'to appear for us and each of us,' in an action of debt 'to be brought against us and each of us,' and to confess judgment 'against us and each of us,' and the court, Bronson, J., delivering the opinion, says: 'I am strongly inclined to the opinion that the warrant will only authorize a joint judgment against all the obligors.'

"In Kahn v. Lesser, supra, the promissory note and warrant of attorney were executed by Lesser and another, and were both joint, the power being, 'to enter our appearance before any court of record, in term time or in vacation, in any of the States or territories of the United

« ΠροηγούμενηΣυνέχεια »