*386ON PETITION FOR REHEARING.
The petition for a rehearing of this case must be denied. The rehearing is asked upon two grounds, viz.: First, that the notice of appeal was signed, not by the attorney of the appellant, but by another, who signed the same at the instance and request of the appellant's attorney. This point was considered in the opinion, and overruled, upon the ground, among others, that any defects in such notice had been waived by the conduct of the respondents’ counsel. We will add, however, that the point would be overruled by this court on its merits. The question, in our opinion, is covered by the principle announced in the following cases, which state the later and better rulq of construction: Hotchkiss v. Cutting, 14 Minn. 537 (Gil. 408;) Herrick v. Morrill, (Minn.) 33 N. W. Rep. 849. Counsel cites section 7023, Revised Codes, and states in his petition that he “relies upon it entirely.” That section has reference to a case where an attorney at law who is not an attorney in an action nevertheless permits his name to be used by another as an attorney in the action. It has no reference to a case like this, where an attorney who is in fact the appellant’s attorney authorizes another person to sign his name to a process or notice in the action. The citation has no pertinency to the point raised by the petition.
The remaining ground of the petition relates to the statement of the case. It is contended that the statement should have been stricken from the record, because the same was irregularly settled, for certain reasons stated in the petition, and for the further reason that Judge Templeton, who retired from office before he settled the statement, was without authority to do so, not then being a judicial officer. We are of the opinion that the questions raised by this feature of the petition need not necessarily be considered in disposing of this case, for the reason that an examination of the judgment from which the appeal was taken shows that the only question raised on the merits is presented on the face of the judgment itself, unaided by other facts brought upon the record by the statement of the case, The judgment *387recites as follows: “Having heard the arguments of counsel, and after due consideration having found in fact that this action is prosecuted on a champertous agreement, therefore it is hereby ordered * * * that this action be, and the same is hereby, dismissed with prejudice.” The record shows also that the defendants, who signed the notes sued upon, have made default, and have never answered the complaint, and hence havé confessed that the obligations in suit are valid and subsisting obligations against them, upon which the plaintiff is entitled to recover a judgment. These defendants procured a dismissal of the action without a trial, and upon a mere motion, and the grounds of such dismissal are that the action is being prosecuted upon a champertous agreement. The authorities which have controlled this court in deciding this case, and which are cited in the opinion, go to the extent of holding that a champertous agreement made between the plaintiff and another person, which agreement is' independent of the contract sued upon, can never operate to defeat an action which is based upon a valid claim which is not tainted with the stigma of champerty. The record in this case, aside from the special facts embraced in the statement, shows that this action is based upon the defendants’ promissory notes, and in no wise rests upon a champertous agreement. If a champertous agreement is the cause and incentive for the prosecution of this action, such agreement exists independently of the defendants’ written obligations; and under the better modern rule such an agreement cannot be resorted to as a means of defense to an action in a case like the case at bar.
(75 N. W. Rep. 767.)