George F. Uzzle & Co. v. Vinson

16 S.E. 6, 111 N.C. 138

• Court: Supreme Court of North Carolina
• Decided: September 5, 1892
• Status: Published

Opinion

MacRae, J.:

We are of the opinion that liis Honor properly dismissed the motion made by Uzzle and Wilson to set aside the judgment confessed by A. B. Vinson in favor of Esther Vinson. If the ground upon which it is sought to set it aside were irregularity only, none could be heard to impeach it upon such ground but a party thereto. Out of the many decisions to this effect, we select Dobson v. Simonton, 86 N. C., 492, and the cases there cited. ’ ’

If it were sought to vacate this judgment upon the ground of fraud, it could not be attacked by motion in the cause, but only by an independent action. Sharp v. Railroad, 106 N. C., 308. The ground upon which this motion is made, however, is that the confession of judgment is void, because of a failure to comply with the requirements of the statute, section 571 of The Code, which provides for the manner in which judgments may be confessed without action.

The. three grounds upon which the motion to vacate is made are all comprehended in the first, because it did not conform to the requirements of the statute. Section 571 of The Code reads: “A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect: (1) It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor. (2) If it be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due.” The third subdivision of this section does not concern our present inquiry.

The confession states the amount, $2,250, and authorizes the entry of judgment therefore, with interest at six per cent., from November 2, 1876. This is in strict compliance with the first requisite of the statute.

It further states that it is for the amount due on a bond under seal, executed by defendant to plaintiff, dated November 1, 1876; that it is justly due, and that it is for borrowed money. This seems to us to be, but for a little tautology, as concise a statement of the indebtedness, with the facts out of which it arose, as could be made. It sets forth the debt and the consideration, so that any other creditor may scrutinize the transaction and inquire into its honesty and good faith.

In Davenport v. Alexander, 84 N. C., 621, where this statute was lucidly considered and construed, the confession was for a certain sum, “said to be a debt now justly due said plaintiff by said defendant, arising from the acceptance of a draft, of which the following is a copy,” &c. The draft was drawn upon and accepted by J. A. Smith. The confession of judgment was made upon this draft by J. A. Smith, President of the Empire Mining Company, and it was sought to bind the property of this company by the judgment so confessed. The demands of the 'statute were in that case, said to be, what was the real consideration of that draft, the time and manner of its creation. The information upon those points was meagre and insufficient. In the case of Davenport v. Morris, 95 N. C., 203, the attempted confession was upon a note, the consideration of which was not stated, and upon an open account appended to the affidavit, but not made a part of the same.

Without in any way relaxing the strictness of the rule adopted for the construction of these confessions of judgment, for the reasons given in the above-cited opinions we hold that the confession in the case before us is a full compliance with the terms of the statute. The bond, which is presumed to have been in possession of the obligee, is fully described in the affidavit, and a bond of the precise description of that in the confession is affixed thereto to make up the judgment roll.

No error. Affirmed.