On May 3, 1884, the plaintiff, J. Walter Cuykendall, then residing in the state of Delawate and being indebted to the defendant, Nelson R. Doe, made and delivered to said defendant his promissory note or written promise to pay the sum of $150, with interest, on or before
And further I do hereby authorize and empower any attorney or prothonotary of any court of record, within the State of Delaware, or elsewhere, to appear for me at the suit of Nelson E. Doe, his executors, administrators or assigns, and thereupon to confess judgment on the above obligation against me to the said Nelson E. Doe, his executors, administrators or assigns, as of the last week, or any other subsequent term or time after the date hereof, with stay of execution until the first day of January, 1885, aforesaid and I do hereby release all and all manner of errors or error in any such judgment, and in the execution to be issued thereon.
Soon after the making of this obligation plaintiff removed from the state- of Delaware and at no time since has been a resident therein. He has been a resident of Iowa continuously from the year 1890 to the present-. The debt represented by the noté has never been paid. ,
By the statutes of Delaware it is made the duty of the prothonotary or clerk of a court of record, “ on application of the obligee, or assignee, of a bond containing a warrant for an attorney at law or other person to confess judgment, to enter judgment against the person who executed the same, for the amount which, from the face, appears to be due, without the agency of an attorney, or declaration filed, and with such stay of execution as may be herein mentioned; particularly mentioned on his docket, the real debt and time from which interest is to be calculated.” Laws Del. 1852, page 102, chapter 37, section 5. It is also further provided that: “ A judgment, entered by the prothonotary of the superior court upon an obligation, without declaration filed, according to the provisions of section 5, chapter 37, shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney, or judgment
On September 25, 1900, one William E. Cansey, an attorney at law, claiming to act under the authority of the warrant of attorney contained in the aforesaid written obligation, confessed judgment thereon in favor of the defendant herein in the Superior Court of Delaware in and for Sussex county. The entry of said judgment of record is in the following form:
Thereafter, as we gather from the record, Doe began an action at law against Cuykendall in the district court of Cass county, Iowa, to recover upon the judgment aforesaid, but for some reason dismissed it before trial was had. The note upon which the judgment had been confessed having
1. Foreign judgments: enforcement. I. It is said that, even conceding the validity of the confession of judgment under the laws of Delaware, the proceeding by which such judgment was obtained is so far out of harmony with pur own practice and so con-P . . r trary to the spirit and policy of our own laws that the courts of Iowa will not recognize such a judgment as affording a ground of recovery. It may be conceded that, while the Constitution of the United States declares that “ full faith and credit shall be given in each state to the public arts, records and judicial proceedings, of. every other state” (article 4, section 1), it is yet competent for a party, when sued upon a judgment rendered in a foreign state, to impeach its validity for want of jurisdiction in the court rendering it. D’Arcy v. Ketchum, 52 U. S. 165 (13 L. Ed. 648) ; Thompson v. Whitman, 85 U. S. 457 (21 L. Ed. 897); Hall v. Lanning, 91 U. S. 160 (23 L. Ed 271); Pennoyer v. Neff, 95 U. S. 714 (24 L. Ed. 565). It is also
But none of the exceptional cases appear to go to the extent contended for by appellant. Confession' of judgment under warrant of attorney is a practice which has prevailed in many, if not most, of the older states of the Union from an early day. Wherever the Legislature has recognized such contracts and provided for their enforcement, the courts have universally .upheld the validity of the statute. Recognizing the somewhat drastic nature of the proceeding and the possibility of its abuse, the courts are everywhere disposed to construe the power thus given by the debtor very strictly, and to refuse to give force and effect to a confession not made in accordance therewith, but, where the power has not been exceeded and the judgment has been regularly confessed and entered in a court of the state where the debtor resided when the warrant is executed, we find no case where recognition has been denied it in another state. In executing the warrant of attorney authorizing another person to confess judgment in his name, the debtor is held to have in view the laws and practice of the state of which he is a subject, and to consent in advance that the person presenting the warrant may be considered his representative with power to submit to the jurisdiction of the court.
The holding in Grover & Baker Sewing Mach. Co. v. Radcliffe, 137 U. S. 287 (11 Sup. Ct. 92, 34 L. Ed. 670), cited and relied upon by the appellant, is not opposed to this doctrine. In that case the obligation and the warrant of attorney were a New York contract, while the obligor whose rights were involved was a citizen of Maryland. By the
But we do not think that a citizen of another State than Pennsylvania can be thus presumptively held to knowledge and acceptance of particular statutes of the latter State. What Benge authorized was a confession of judgment by any attorney of any court of record in the State of New York, or any other State, and he had a right to insist upon the letter -of the authority there conferred.
In other words, the judgment was held void, not because the warrant of attorney was invalid, but because its terms had been disregarded in entering judgment without the 'prescribed confession. This is very far from holding that, had judgment been confessed by .an attorney strictly in accord with the power granted, it would not be entitled to full faith and credit in each of the states of the Union. In the case at
3. provision bor STAY OF EXECUTION: effect. It is further alleged that, by the provision of the warrant providing for a stay of exeéution to January 1, 1885,, an implication arises that the power to confess judgment ™ust be exercised, if at all, before the date named. It will be observed that the promissory note in question did not become due until January 1, 1885, and we are disposed to hold that the provision for stay of execution to that date indicates no more than an agreement or stipulation, between the parties that, if judgment were confessed before the maturity of the note, as is the well-known practice in states where confessions are allowed ('Crafts v. Clark, supra), no execution should issue before the debt thus evidenced became due. From this no implication can fairly be extracted that the power must be exercised ^before the note becomes due, or not at all.
4. ?SdI5en?!* °S Neither is the objection to the judgment because entered in vacation well taken. We are cited in this connection to Roundy v. Hunt, 24 Ill. 598, and other Illinois cases, but’neither of these cases is directly in point, and they seem to turn upon the effect of the statutes of that state. In the case before us it is
5- oímS™1 jurisdiction, Finally, upon this branch of discussion, it is urged that the judgment should be held invalid because the note and warrant of attorney were not placed and kept on file in the court where the judgment was entered. But this a mere, detail of practice, the omission of which cannot in our opinion affect the validity of the judgment, if otherwise duly entered. See Bank v. Mills, 115 N. C. 507 (20 S. E. Rep. 765). However desirable it may be that these matters of evidence should.be made and preserved of record, failure to do so has no effect to show want of jurisdiction in the court to enter the judgment.
6 judgi.Íents: aSions.0” °f III. The proposition advanced by appellant that the attorney assuming to confess judgment had no authority to waive the statute of limitations is sound. Walrod v. Mason, 23 Wis. 393 (99 Am. Dec. 187); Kahn v. Lesser, 97 Wis. 217 (72 N. W. Rep. 739). But there is no room for the application of that doctrine to this case. While it is true that action on the note was fully barred in this state before the judgment was entered thereon in Delaware, it also appears that, upon written promises to pay, accompanied by a warrant of attorney such as was executed by the appellant, action may be brought in the latter state at any time within twenty years from the date of maturity. Such being the fact, the further fact that the action on the note was barred in this state would not operate to abbreviate the period of limitation in the state where the contract was made, and, the
7' judgments : rerard.ncyof IV. Of the record entry of the judgment, we may say that it is very brief and informal, but shows with clearness ■ the appearance by attorney, the confession by him of judgment, the date thereof, the principal sum for which appellant was indebted, the amount of costs, and the date from which interest was to be computed; and the entry is attested by the official signature of the prothonotary. This we regard sufficient. At least it is not so wanting in form or substance that we can properly hold it of no validity as a judgment.
8. Confession oí judgment by of debtor™0' V. The jurisdiction of the Delaware court to enter the judgment is challenged, because at the time of its entry appellant had ceased to be a resident of that state, and because no notice or summons of any kind was served u upon him, and there was no appearance to the proceeding by him or by any one in his behalf, except the appearance by Cansey under the warrant contained in the note. If the warrant of attorney was of any force or effect when made, it can hardly be seriously argtíed that appellant could render it void and valueless by the simple expedient of leaving the state. The statement of the proposition is its own refutation. The very purpose which the law for confession of judgment under warrant of attorney was designed to effect was to enable the creditor to obtain judgment without delay, trouble, and expense attendant upon bringing the debtor into court by formal action and service of process.
As we have seen, the statute under which appellant’s contract was made explicitly provides that, when an attorney appears under the authority of the warrant for the purpose of confessing judgment, the party giving the authority
Counsel cite us to section 14, page 391, of chapter 110, Laws Del. 1852, which provides that an attorney cdnféssing
It follows from what we have said that the decree entered by the trial court is correct and it must be affirmed.