Hodges v. Ashurst & Sons

2 Ala. 301

• Court: Supreme Court of Alabama
• Decided: January 15, 1841
• Status: Published

Opinion

COLLIER, C. J.

— So many of the errors assigned, as refer to the power of attorney copied in the transcript, cannot be noticed. That paper is not necessarily a part of the record, and not being so made by order of the Circuit Court, we are-not authorized to look to it, for any purpose.

In respect to the sufficiency of the judgment, it may be remarked, that it is competent for a Court, having jurisdiction of the subject matter, to receive the confession of a judgment, though no writ, or other proceedings, have been had in the case. (Coller v. Denson, Minor’s Rep. 19.) So a judgment may be confessed by an attorney at law, and it will be regular, though the entry does not shew that he produced a written authority from the defendant, authorizing it. (Hill v. Lambert & Brothers, Minor’s Rep. 91. See also, Gayle & Foster, Minor’s Rep. 125.)

In the case at bar, the judgment entry is very inartificial, and untechnical, yet we think it may be sustained. It recites a written authority to the attorney, to make the confession — the proof of that authority, and the sum for which the judgment was to be rendered. This seems to have been followed in the cognovit, and entry, which gives effect to it.

It would certainly be a safer practice, where a judgment is confessed under a letter of attorney, to set out the authority in extenso, that the regularity of the proceeding may appear from an inspection of the record, yet, as no rule of law requires this, we cannot say that the confession was .unauthorized, where the judgment contains all the essentials, requisite to its validity.

The judgment then, being confessed by a person duly authorized,'and for a sum certain and proper, operates as a release of errors; (Aikin’s Dig. 266,) and is therefore affirmed.