Cordier v. Schloss — 1 Cal. Dist. Ct. 227

Majority

p. 227

CORDIER vs. SCHLOSS.

Fourth Judicial District Courts

September, 1857.

Headnote

Judgment by Coneession—-Statement.

A void judgment by confession will not be set aside, on notice and motion of a party who has an action and attachment pending against the same defendant, but no ' judgment. The proper remedy in such cases is by original writ in equity.

The ctatntc on confession must be strictly pursued. Unless substantially complied with, tli© judgment is a nullity.

The statement authorizing the judgment, should contain facts sufficiently full and complete to give information how the liability “ arose,” and to “ show ” that the sum confessed therefor is justly due : if defective in this, the judgment is irregular. - It should also authorize a payment for a specified sum, and not leave it to be ascertained by calculation.

Whether material mterlineationsj not noted in the statement, and when the authority given is, to enter the payment in the “clerk’s office,” (no court being named) is error, quwre.

The facts in this case are substantially as follows: The firm of

Joseph S. Kohn & Brother were merchants doing business in the city of San Francisco, and were indebted to this plaintiff and Schloss & Heil= iaroner of Héw York city.

On the night of the 18th of February, 1857, Joseph S. Kohn and Morris Kohn, the copartners of the said firm, confessed a judgment to said Schloss & Heilbroner, which was entered in the District Court of the Fourth Judicial District, in the' following form;

In the District Court of the Fourth Judicial District,.

State oe California,

City and County of San Francisco.

Schloss & Heilbroner, ' composed of

M, Schloss and Joseph Heilbroner, ye. > Joseph S. Kohn & Morris, partners tender the firm name of Kohn & Brother.

p. 228

The defendants state and admit that they are justly indebted to thy plaint® in the sum of. two thousand and four hundred dollars, and interést thereon, at the rate of one per cent, per month, from the 15th day of May, 1856, for which amount they consent that judgment may be entered against them by the clerk of said court hi Ms office, and the facte.out' of'wMeh said indebtedness [accrued] are. as foEows, to wit; That the plaint® are the owners of the. foEowing promissory note, made by said defendants, to.-wit;

12,400, Sacramento, May 15,1856.

Eight months after date we promise to pay to the order of ourselves, in the city of Hew York, two thousand and four hundred doEars, at the rate of one per cent, per month until paid, value received.

(Signed,) Joseph S. Kohn & Brother.

That the said note was .given by the said defendants to the said plaint®, for goods sold and delivered to the defendants by the firm of Schloss & Heilbroner, the plaintiffs aforesaid, [and money had and received by deftg.] That the consideration for said promissory not© was said [money and] goods, sold [by] plaint® to, and received by them, the defendants aforesaid.

That the sum above by us confessed, is justly due to. the said plaintiffs on the foregoing note, after' slowing all just credits and offsets, without any fraud whatever, for. which amount they do hereby authorise the clerk of said court to enter up judgment against them, the s@M defendants.

Dated Sam Francisco, the —— day of February, 1857,

City and Cqxjny of San Francisco,

Joseph S. Koim, and Morns Kohn, the defendants aforesaid,.each for himseE, being sworn, says that the above statement of confession Is trae.

Joseph S. Kohn,

Mobbxs Kohn,

Sworn to before me this 18th day of February, A. D. 1857.

P« K. WOODSIDE,

Deputy Co. Clerk.

To which was appended the note Itself, which appears to have been made while Kohn & Brother were established at Sacramento, previous to removing to Ban Francisco.

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the decision of the court. ling m office of the clerk of the court,

without any action on the part of fee The statute being In derogation of the common law, should be strict- T~ e~ion w~ ffl~ o~

th~ 19th~ 1~7~ .e~so~oiu~ ~c~ued thereo~ Oi~ a~he~ th~ ~ then i~r~Ie fo~k `~O

t~i~ cf~ aile~n~ fr~ud~ mov~U a~ I~it~ ~ki~ COURT ~ Cosflles va., Scfalocs. Those words in brackets in the

confession,• are-fc mtefEneatiome sa- ferred-fo in the opinion» The court was of the opinion,-that Cordier - must obtain a judgment before he would have sufficient sfeandmg.In court to entitle- M® to

at- tack the judgment in this summary way» As between the parties thereto the judgment may be valid although void as to judgment creditors , hut Cordier’s action being undetermined, he Is not,

and possibly never may be, a judgment creditor» The court further stated that no adjudlcated'csss had been produced and the court know of none, where it had been held Sat a void judg- ment could be set aside on notice and motjon upon the appEcg&B of a party who had. a suit pending against the same defendant and expected to, but had not in fact, obtained a judgment. That under a previous decision of this court&emdash;affirmed in the supreme eourfe-Cordier, hav- ing a lien by attachment, may proceed in equity by original writ and obtain protection

and relief, and this was his proper remedy, -~ ~` and &~qci'~ ~ Cordier then commenced an . action in. eqrdy against Kohm k Brother and ScHoss k Heilbroner, and obtained an injunction restrain- ~T~-By the law ef this ~tate~ j~dg~e~nt~ by eoe~~i ~e

to be entered of

reoord by a

proooodtod to the of the clerk of the co~n~t~, withon.~ e~y action on the part of the @ocirt itcelf~ of the clerk of the co~n~t~ withon.~ e~y action on the part of the @ocirt itcelf~

The statute being In derogation of the common law, should be strict-

p. 230

ly pursued.: in entering the judgment the clerk acts ministerially under its- authority, and all the provisions of the act must be substantially cómplied with, or the judgment is a nullity.

The defendant is required to make a statetnent which he must sign and verify by his oath; this must authorize the entry of the judgment for a specified sum, and “ if it ” (the judgment) “ be for money due, etc. it ” (the statement) “ must concisely state the facts out of which it ” (the money due) “ arose, and show that the sum confessed therefor is justly due.” Practice Act § 374, 375.

The statement in question sets forth the facts of indebtedness as follows : “ The plaintiffs are the owners of a promissory note made by defendants,” which is copied at length—“ that the said note was given by the defendants to the said plaintiffs for goods sold and delivered to the defendants by the firm of Schloss & Heilbroner, the plaintiffs aforesaid, and money had and received by defendants: that the consideration of said promissory note was said money and goods sold by plaintiffs to, and received by them, the defendants aforesaid: that the sum above, by us confessed, is justly due to the said plaintiffs on the foregoing note,” etc.

Neither the amount, value, or date of sale of the goods sold and deEvered, nor the amount or date of the money had and received, nor whether received from Schloss & Heilbroner or some other person, are stated. It cannot be gathered or determined how the sum mentioned in the note, is made up, and although it is so declared in words, yet the statement itself does not,'by stating concisely, ike facts constituting Ike liability, in the language of the. act and according to the common acceptation, of the word, “ show” that the sum is justly due.

As a statement in a complaint, of facts constituting a cause of action for goods sold and deEvered, or money had and received, it would hardly be contended that this in question, would be sufficient, and yet the provisions of the act in regard to the statement of facts in a pleading, are substantially the same as that in case of judgment by confession, practice act §§ 39, 475.

In my opinion, the statement of facts in the confession of judgment is not in conformity with the statute, and is insufficient.

Besides those noted, there are other objections to the statement, some of which might perhaps be weU taken, to wit:

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1st. The authority is not given, as required by the law, to enter the judgment for a specified sum. The statement was made February 18,1857, and authorized a judgment for $2400 and interest thereon at the rate of one per cent, a month from the 15th of May, 1856. Thus the sum, instead of being specified, was a matter of calculation.

2d. Judgment is authorized to be entered by the clerk, in Jits office. The statute intends it to be of a court, § 376—and, although the statement is filed with the clerk, and he enters it in the judgment book, it would be safer practice to specify the court where the judgment is intended to be confessed and entered of record.

3d. There are material interlineations which are not noted, an$ the affidavit annexed, instead of the statement itself, is signed by the defendants therein.

Having arrived at the above conclusion, it is unnecessary to pass upon the other questions, raised upon the trial and argument.

The judgment by confession, so far as i$ effects the lien and judgment of the plaintiff in this action, should be set aside.

Decree ordered accordingly.