As I do not agree with my associates in the conclusions reached upon the questions decided in this case, and as they are of more than ordinary importance, I feel it my duty to state the reasons for my non-concurrence, although limit of time requires that I do so very briefly.
The principles enunciated by the supreme court of the United States, Freeman on Judgments, and Judge Cooley, in his incomparable work on constitutional limitations, contained in the first part of the foregoing opinion, meet with my unqualified approval, but I believe them utterly repugnant to the holding that ch. 31, Oklahoma Session Laws, 1895, is constitutional and valid. It will be observed that no notice whatever, upon the sureties who are to be bound by the judgment entered, is provided for in said chapter. The provision that *Page 423 notice shall be served upon the appellant is ridiculous as he is already bound by the original judgment. To uphold this law will be to encourage other legislation of this character, and it will require but one step further by the legislature in this direction to enact that the supreme court of this territory, upon affirming a judgment against an appellant or plaintiff in error, shall also enter up judgment against his bondsmen, and that the probate courts shall, upon the breach of their duties, enter up judgment against the bondsmen of executors and administrators, as the sureties on both these classes of bonds bind themselves that their principal will perform the orders and judgments of the respective courts. I think such legislation fundamentally wrong and in violation of our constitutional provision guaranteeing that the property of no individual shall be taken without due process of law. Suppose, for instance, that the alleged surety on the bond in an appeal from a justice to the district court never, in fact, executed said bond. Is it due process of law to enter judgment against him and issue an execution thereon and require him to resort to the extraordinary remedy of injunction and assume the burdens of advancing costs and giving indemnifying bonds in order to protect his property from sale under said execution? Suppose, again, that such an alleged surety should, by accident or otherwise, learn of the intended proceeding upon the motion of the appellee to enter judgment against him, and should appear in the court and set up the fact that he never executed the bond, or that same was executed by fraud or mistake, or allege any other competent defense to such proceeding, and demand a trial by jury, could the court grant same on the summary proceeding provided for in said chapter? If not, then how can the provisions thereof be declared valid *Page 424 under said constitutional guarantee? The same difficulties will arise where the conditions of said bonds are illegal, or for any other cause not binding upon those who execute them as sureties. Suppose, further, that a surety upon such bond should die after the execution thereof and before the date of final judgment in the district court against the appellant, would it be due process of law for the district court to proceed to enter up judgment against the deceased? Under the provisions of said chapter there is no possible way for the court to know whether the surety is living or dead, as no notice of any kind is required to be served upon such surety to bring him into court; but, suppose the court should, in some way, ascertain the fact of the surety's death, would it be the court's duty, under said chapter, to enter up judgment against the heirs of the deceased, or administrator or executor? I think the provisions of this chapter wholly repugnant to reason and common sense, as well as violative of our Organic Law and can, therefore, never give my assent to upholding same.
It is clear to my mind that a surety upon an appeal bond is as much entitled to have his day in court as a surety on any other class of legal obligations; in fact, some of the most important litigation of the day grows out of the interpretation to be given to just such bonds and the question of the liability of the sureties thereon.
In entering my dissent in this case, I freely admit that there is considerable respectable authority, (perhaps the majority of the decided cases), sustaining the position taken by the majority of this court, but I cannot give my assent to the reasons given or the conclusions reached therein.
In Chappee v. Thomas, 5 Mich. 53, cited in the opinion *Page 425 of the majority of this court, the reasoning upon which a similar statute was sustained is as follows:
"The bond is, we think, to be read in all respects as if the whole of the statute in reference to the appeal, the bond, and mode of entering up judgment upon it, were recited at large in the bond. And, in this view, it becomes a direct and binding assent to, and authority for, the entry of the judgment in this manner, and stands upon a principle analogous to that of a warrant of attorney. It is true the authority is here given to the court, instead of one of its officers, as the attorney of the party, but this is a difference of form rather than of substance."
It may be said in this connection, however, that Chief Justice Martin took no part in said decision.
From an examination of the opinion in Chappee v. Thomas,supra, it will be readily observed that the reasoning therein does not answer any of the objections above suggested to such a law as the one sustained by that, and a majority of this, court.
In the case of Pratt v. Donovan, 10 Wis. 320, the supreme court of that state, after assigning practically the same reasons for sustaining a similar law as those assigned in the opinion of the supreme court of Michigan in Chappee v. Thomas,supra, attempts to answer some of the writer's objections thereto, in the following language:
"And I think it is no objection to this view to say that the undertaking might be forged. The decision is placed upon the fact that the undertaking, assuming it genuine, fairly amounts to a consent to the entry of judgment. And we think the validity of the law is to be tested on this assumption. And if correct in the position that the undertaking is a consent, the fact that it might be forged does not invalidate the law. Acognovit might be forged; an attorney might, without authority, *Page 426 consent to a judgment, or one person might, by collusion, be sued for another and consent to judgment; in all such cases the party wronged would undoubtedly be entitled to his remedy on a proper application to the court. But we think the possibility of such a forgery, or false personation, does not invalidate the law authorizing judgments by consent. The law proceeds on the assumption that the consent is genuine, and on that assumption its validity is to be determined."
The above is not a satisfactory answer to said objections. If courts could assume all written instruments to be genuine and subsisting, then they could uphold a law providing for the entry of judgment against parties executing promissory notes, by simply bringing the notes into court and exhibiting them, without requiring any notice whatever to be served upon the parties proceeded against. It is true that the signatures to the note may be forged, or the note may have been paid, or the makers, or some of them, released, or some other valid defense to said note may exist, but the same may be true as to liability of sureties on an appeal bond. Such sureties may have paid the judgment against their principal. They may have been released by the appellee, or the conditions of the bond may be wholly insufficient to bind them, or their signatures thereto may have been forged, yet, judgment is to be entered against them upon the mere motion of the appellee and without any notice whatever to them.
The decision in Pratt v. Donovan was by a divided court, Paine, J., writing the opinion, which was concurred in by Dixon, C. J., with Cole, J., dissenting.
I think the doctrine announced and adhered to by the supreme court of Kentucky, which is practically opposite to that contained in the majority opinion herein, the correct one. (SeeHughes v. Hughes, 4 B. Mon. 43). And *Page 427 Smith v. Smith, [Miss.], 1 Howard, 102, is also directly in point as supporting the same doctrine.
In all of the cases cited in the opinion concurred in by the majority of the court the liability of the sureties is based upon the proposition that such sureties must have known the law when they signed the obligation and that the law therefore became as much a part of the obligation as if written into the bond; in fact this is the only theory upon which such a statute can possibly be upheld, and, in the case at bar, no such law existed when the sureties incurred the liability on the bond. It cannot then be said that at the time of the execution of the undertaking such law became a part thereof, but the majority of the court hold that whatever the legislature could have legally enacted prior to the execution of the bond as to the procedure which should be employed in procuring judgment against the sureties thereon, could be enacted subsequently thereto and made binding upon such sureties. This, in my opinion, cannot be sustained in reason or authority, even if it should be conceded that the act in question is valid as to bonds executed subsequent to its enactment. I agree that the procedure as to the manner of bringing said sureties into court could be changed by the legislature subsequently to the inception of their liability on said undertaking, provided the mode of procedure subsequently enacted required that they be given actual notice of the proceedings against them by which the judgment against the principal in the undertaking should also become a judgment against them, but I can go no farther and feel that I am supported by sound principles of law.
Entertaining these views, I hold that the statute in question should be declared unconstitutional and void *Page 428 and especially so regarding the liability of the sureties on the appeal bond in question.