CHAPTER LIII. JUDGMENT BY CONFESSION. § 1458. In general.-A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed in the code. Such judgment may be entered in any court having jurisdiction for like amounts.1 A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect: 1. It must authorize the entry of judgment for a specified sum; 2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed therefor is justly due, or to become due; 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and show that the sum confessed therefor does not exceed the same.2 The statement must be filed with the clerk of the court in which the judgment is to be entered, who must indorse upon it, and enter in the judgment-book, a judgment of such court for the amount confessed, with ten dollars costs. The statement and affidavit, with the judgment indorsed, thereupon becomes the judgment-roll.3 Judgment by confession may also be entered in a justice's court for any amount within its jurisdiction. The confession must specify the justice's court in which it is to be entered.5 The statement and affidavit in all other respects is the same as in superior courts. If a transcript of such judgment be filed with the county clerk, a copy of the statement must be filed with it." 1 Cal. Code Civ. Proc., § 1132; Alaska Codes, pt. 4, ch. 21, §§ 241247; Ariz. Civ. Code, par. 1437; Idaho Rev. Codes, § 5060; Mont. Rev. Codes, §8 7250-7253; Nev. Comp. Laws, §§ 3454-3456; N. Mex. Comp. Laws, §§ 3077-3084; N. Dak. Code Civ. Proc., § 6130; Or. B. & C. Codes, §§ 186, 192, 199, 201; S. Dak. Code Civ. Proc., §§ 309, 784-786; Utah Rev. Stats., §§ 3213-3215; Wash. Bal. Codes, §§ 5094, 5095, 5099; Wyo. Rev. Stats., §§ 3617, 3763, 3764. 2 Cal. Code Civ. Proc., § 1133. 5 Cal. Code Civ. Proc., § 889. § 1459. Who may confess judgment.-A confession of judgment against a corporation, based upon appearance by its vicepresident and presiding officer and an affidavit setting out his capacity and the facts as to the indebtedness, is not void on its face. Though a director of a school district is authorized to appear for and on behalf of the district in all suits wherein the district is a party, he cannot confess judgment for the school district, and such confession, unless authorized by the board, is void. A city council may authorize the city attorney to appear in court and confess judgment in a proceeding wherein the city has been served as defendant." § 1460. Confession by attorney.-In Oklahoma, in absence of previous process or proceeding, an attorney can confess judg ment only when authorized by warrant of attorney, acknowledged or proved as a conveyance of land, the defendant having previously filed his affidavit stating concisely the facts on which the indebtedness arose and the amount justly due.10 § 1461. Collateral attack.-Every judicial proceeding taken with intent to delay or defraud any creditor or other person of his demands is void against all creditors of the debtor and their successors in interest, and against any person upon whom the estate of the debtor devolved, in trust for the benefit of others than the debtor.11 A confession of judgment made for such a purpose will be held void as to such creditor upon a direct proceeding taken by him to avoid it.12 If confessions of judgment are prohibited by the insolvent laws, the assignee in insolvency can have them adjudged void upon a proper proceeding for that purpose; but attaching creditors cannot assail them in equity, if the judgments confessed were for debts justly due.13 It is not necessary that the plaintiff in such action should be either a judgment or execution creditor. A lien acquired by attachment suffices. 14 Where a judgment was rendered by con 7 Manley v. Mayer, 68 Kan. 377, 75 Pac. 550. 8 Moore v. School District, 11 Okla. 332, 66 Pac. 279. 9 Smith v. State, 64 Kan. 730, 68 Pac. 641. 10 Okla. (Wilson's) Rev. & Annot. Stats., §§ 4592-4594; Harn v. Cole, 20 Okla. 553, 95 Pac. 415. 11 Cal. Civ. Code, § 3439. 12 Ryan v. Daly, 6 Cal. 239; Lee v. Figg, 37 Cal. 328, 99 Am. Dec. 271. 13 Pehrson v. Hewitt, 79 Cal. 594, 21 Pac. 950. 14 Seales v. Scott, 13 Cal. 76; Heyneman v. Dannenberg, 6 Cal. 376, 65 Am. Dec. 519. fession in open court, upon an allegation of indebtedness and appearance of the parties, whatever errors intervened, they cannot, at the instance of one not a party to the judgment, be invoked to set aside or show the judgment was a nullity.15 Where judgment is taken by confession in good faith and for value, it cannot be impeached for fraud between other parties.16 To be vacated, the judgment must be wholly void. One sufficient item will not avoid it, if the rest be good.17 But if for the purpose of defrauding other creditors one creditor obtains judgment. against the debtor for a larger sum than is due, such judgment is void as to the other creditors.18 Judgment cannot be impeached by attaching creditors; only by the holder of a judgment.1 19 § 1462. Insufficient statements.-A statement for confession of judgment, to the effect that the indebtedness is upon a note, etc., is insufficient. So where the statement is that the indebtedness is for goods sold and delivered and money had and received, it is insufficient in this, that it does not show the kind or quantity or price of the goods, or time of sale, or when the money was received, or under what circumstances, or how much of the indebtedness is for money and how much for goods; and the judgment confessed is prima facie fraudulent.20 For cash loaned, without giving particulars of loans, was held insufficient.21 So for balance of account, without stating any facts. as to sales out of which it arose.22 It should appear by some form of direct statement that at the very instant the judgment was confessed the relation of debtor and creditor existed, and to the extent stated in the judgment.23 To rebut the presumption of fraud, the facts proved must be consistent with the averments of the statement, and in support of them.24 15 Cloud v. El Dorado County, 12 Cal. 133, 73 Am. Dec. 526. 16 Kirby v. Fitzgerald, 31 N. Y. 417. 17 Frost v. Koon, 30 N. Y. 428. 18 Anderson V. Bank of Lassen County, 140 Cal. 695, 74 Pac. 287. 19 Bentley v. Goodwin, 15 Abb. Pr. 82. As to impeachment of judgment by confession, see Miller v. Bank, 2 Or. 291; Miller v. Oregon etc. Mfg. Co., 3 Or. 24; Allen v. Norton, 6 Or. 344. 20 Cordier v. Schloss, 18 Cal. 576. See, also, Wilcoxon v. Burton, 27 Cal. 233, 87 Am. Dec. 66; Richardson v. Fuller, 2 Or. 179; Puget Sound Nat. Bank v. Levy, 10 Wash. 499, 45 Am. St. Rep. 803, 39 Pac. 142. 21 McDowell v. Daniels, 38 Barb. 143. 22 Miller v. Earle, 24 N. Y. 110, 112. 23 Denver v. Burton, 28 Cal. 549. 24 Pond v. Davenport, 44 Cal. 487. § 1463. Joint debtor.-A judgment by confession of one joint debtor will not reach the joint property, but be effective only against him who authorizes its entry, as such a judgment is unauthorized.25 In an action on a joint contract, if one be defaulted and the other go to trial on a plea peculiar to himself, judgment in his favor will not discharge the defaulting defendant; but if the defense be a common one it will release all defendants.26 § 1464. Judgment creditor, proceedings by.-A judgment creditor, made such by confession of judgment, who seeks to reach money in the hands of the junior judgment creditors, upon the ground that he has a prior lien upon the same, must aver in his complaint that at the time his judgment was rendered the amount for which it was rendered was unpaid and due.27 § 1465. On award.-A judgment may be entered by confession for the amount specified in the award, in the same way that it may for the sum mentioned in a bond, note, or other instrument; but that is a judgment by confession.28 § 1466. Promissory note.-Where judgment is confessed on a note, a portion of the consideration being advanced from time. to time after the date of the note, which drew interest on the whole amount from date, a portion of the interest is fraudulent, and the entire note is void against creditors. 29 That notes specified were given for purchase of a described indebtedness, without specifying original consideration, was held sufficient. 30 § 1467. Setting aside confessions. An application by a defendant, or by a judgment creditor, to set aside his confession. of judgment, should show that the claim was not just, and that the judgment ought not to have been confessed. Whether he could thus impeach his former acts is doubtful. A junior judg ment creditor has no right to join with the defendant in such 25 Flannery v. Anderson, 4 Nev. 437; Nev. Pr. Act, § 32. 26 Swanzey v. Parker, 50 Pa. St. 441, 88 Am. Dec. 549. 27 Denver v. Burton, 28 Cal. 549. 227. As to sufficiency of statement on a promissory note, see Acker v. Acker, 1 Keyes, 291; Puget Sound Nat. Bank v. Levy, 10 Wash. 499, 45 Am. St. Rep. 803, 39 Pac. 142. 30 Kirby v. Fitzgerald, 31 N. Y. 417. application.31 In a suit to set aside a judgment confessed by a party to defraud his creditors, it is not necessary that plaintiff should be either a judgment or execution creditor. A lien acquired by attachment suffices. A slight mistake in the omputation of interest, the date being given, is no evidence of fraud.32 A judgment by confession upon a statement which does not sufficiently state the facts out of which the indebtedness arose, nor that the amount confessed was justly due, is not a nullity on its face, and can only be called in question by the creditors of the defendant on the ground of fraud in a direct proceeding for that purpose.33 A general allegation that the confession of judgment was to hinder, delay, and defraud is not sufficient; where fraud is alleged, the facts must be set forth.34 A debtor may prefer a particular creditor by giving a confession of judg ment, unless prohibited by statute. It is not necessary to annex a statement on which a confession of judgment is rendered in a proceeding to set aside the confession upon the ground of insufficiency of such statement.35 Where, in an action against a school district, a director, assuming to act for the district, appears and confesses judgment, such judgment will be set aside upon motion of the treasurer, upon a showing that all authority to appear for the district had been taken from the director and vested in the treasurer, that the director knew that fact, and that the judgment had been obtained by collusion between the claimant and the director.36 § 1468. Several judgments. Where the same fraudulent debtor confesses several fraudulent judgments in several courts, it would not be necessary for a creditor to bring a different suit in each different court.37 In such cases the question of fraud, if there be any proof, is for the jury; otherwise, for the court.38 § 1469. Sufficiency of statement. The statute requires the debtor to state enough of facts to enable creditors to inquire into the transaction.39 General specification of loans and purposes 31 Arrington V. Sherry, 5 Cal. 513. 32 Scales v. Scott, 13 Cal. 76. 33 Lee v. Figg, 37 Cal. 328, 99 Am. Dec. 271. 34 Meeker v. Harris, 19 Cal. 289, 79 Am. Dec. 215. 35 Vannice v. Greene, 14 Iowa, 262. 36 Moore v. School District, 11 Okla. 332, 66 Pac. 279. 37 Uhlfelder v. Levy, 9 Cal. 615. 38 King v. Davis, 34 Cal. 100. 39 McDowell v. Daniels, 38 Barb. 143. |