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Feb. 21, 1831, $1.

Oct. 11, 1862, $247.

Judgment by confession.

Oct. 11, 1862, $248.

Who may make confession.

5 Or. 518.

v. Todd, 5 Cal. 36; but it is said, in
California, that a judgment by default
on a complaint which shows no legal

cause of action is erroneous: Abbe v. Marr, 14 Cal. 211; and may be appealed.

TITLE XIII.

OF JUDGMENT BY CONFESSION.

§ 250. Judgment by confession where action pending.

When judgment may be given against several defendants on the confession of one.

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§ 252.

§ 253.

§ 254.

Judgment by confession without action.

Confession to be in writing; how judgment given.

§ 255. How confession made in such cases.

§ 256. Same subject. Execution when judgment for installments.

250. [247.] On the confession of the defendant, with the assent of the plaintiff or his attorney, judgment may be given against the defendant in any action, before or after answer, for any amount or relief not exceeding or different from that demanded in the complaint.

Judgment by confession. Statutes allowing judgments by confession are to be strictly pursued: Chapin v. Thompson, 20 Cal. 686; Bank v. St. John, 5 Hill, 497; Edgar v. Greer, 7 Iowa, 136. Judgments of this kind are in no way valid unless entered in a court which would have had jurisdiction to enter the same judgment in a contested case: Lanning v. Carpenter, 23 Barb. 402. A judgment by confession is to tried by

the same rules, when attacked collaterally, as would other judgments: Allen v. Norton, 6 Or. 344. A judgment by confession regular upon its face can be impeached only for fraud: Miller v. Bank British Columbia, 2 Id. 291.

The assent of plaintiff is necessary, and without it the judgment by confession is invalid for all purposes. But if ratified and accepted, it is valid: Wilcoxson v. Burton, 27 Cal. 228.

§ 251. [248.] When the action is against the state, a county or other public corporation therein, or a private corporation, or a minor, the confession shall be made by the person who at the time sustains the relation to such. state, corporation, county, or minor as would authorize the service of a summons upon him; or in the case of a minor, if a guardian for the action has been appointed, then by such guardian. In all other cases the confession. shall be made by the defendant in person.

Who may confess judgment. -An agent thereto authorized may confess judgment: Parker v. Poole, 12 Tex. 86; Davenport v. Wright, 51 Pa. St. 292. It has been held that a public officer may confess judgment

for the amount due in an action against him for services rendered to the public at his request: Gere v. Supervisors, 7 How. Pr. 257. The officer or agent of a corporation on whom summons might be served (in

this case the president) may confess judgment against the corporation: Miller v. Bank British Columbia, 2 Or. 291; Miller v. Oregon City Mfg. Co., 3 Id. 24. A trustee cannot bind the trust estate by his confession of judgment: Mallory v. Clark, 20 How. Pr. 418; Huntt v. Townshend, 31 Mo. 336;

so a husband cannot confess judgment Oct. 11, 1862,
for his wife, unless, of course, she $248.
authorize him thereto: Roraback v.
Stebbins, 33 How. Pr. 278; Palmer v.
Davis, 28 N. Y. 242.

On whom service of summons
may be made in the cases mentioned
in the statute: See ante, § 55 [54].

$249.

Judgment

on confession

§ 252. [249.] When the action is upon a contract, oct. 11, 1862, and against one or more defendants jointly liable, judgment may be given on the confession of one or more against several defendants against all the defendants thus jointly liable, of one. whether such defendants have been served with the summons or not, to be enforced only against their joint property, and against the joint and separate property of the defendant making the confession.

Judgment against persons property unless made in an action jointly liable: See ante, § 60 [59]. pending: Richardson v. Fuller, 2 Or. A partner cannot confess judgment 179. which shall be binding on partnership

§ 250. Confession,

§ 253. [250.] The confession and assent thereto shall oct. 11, 1862, be in writing, and subscribed by the parties or their attorneys making the same, and acknowledged by each how made. before some officer authorized to take acknowledgments of deeds; but such acknowledgment is not required when the parties or their attorneys shall appear in court when the judgment is given, or before the clerk in vacation by whom the judgment is entered. In all cases, the confession and assent thereto, and the acknowledgment, if any, shall be filed with the clerk.

§ 251.

Judgment by without action.

§ 254. [251.] On the confession of any person capa- Oct, 11, 1862, ble by this code of being made a party defendant to an action at law, judgment may be given against such per- confession son, without action, in term time or vacation, in favor of any one, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant in such judgment, or both if it be in favor of the same person.

What may be confessed for. It is said that this section does not authorize the confession of a judgment without action for damages aris

ing out of tort: Boutelle v. Owens, 2
Sand. 655; Burkham v. Van Saun, 14
Abb. Pr., N. S., 163.

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Oct. 11, 1862, 252.

Same, how made.

§ 255. [252.] The confession shall be made, assented to, and acknowledged, and judgment given in the same manner as a confession in an action pending; besides which, the confession shall be verified by the oath of the party making it, and shall authorize a judgment to be given for a particular sum. If it be for money due, or to become due, it shall state plainly and concisely the facts out of which such indebtedness arose, and shall show that the sum confessed therefor is justly due or to become due.

Judgment by confession without action requires a statement; otherwise none is required: Miller v. Bank of British Columbia, 2 Or. 291; Miller v. Oregon City Mfg. Co., 3 Id. 24. The requisites as to the statement must be fully complied with and strictly pursued, or the judgment will be prima facie evidence of fraud; and this because where a party fails to make all the disclosures required by the act the presumption is that he has something to conceal. But this presumptive evidence, like all presumptions, can be rebutted. It merely throws upon the plaintiff the burden of proving that his judgment was not fraudulent: Richards v. McMillan, 6 Cal. 422; S. C., 65 Am. Dec. 521.

port, 44 Id. 487. 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 defendant on the ground of fraud, and in a direct proceeding for that purpose: Lee v. Figg, 37 Cal. 328.

A confession of judgment suffered for the purpose of hindering and delaying the plaintiff in collecting his debt will be held void as to him in a direct proceeding taken by him to avoid it: Ryan v. Daly, 6 Cal. 239. When a debtor confesses judgment without the request or knowledge of A statement to the effect that the his creditor, and the creditor thereindebtedness is upon a promissory after ratifies it, the record will become note for money is insufficient: Rich- binding, as between the parties to it, ardson v. Fuller, 2 Or. 179. So when by force of the ratification; and the the statement is that the indebtedness judgment will be considered as good is for goods sold and delivered, and from the date of its entry. But such money had and received, it is insuffi- ratification can neither override nor cient in this, that it does not show in any manner affect rights acquired the kind or quantity or price of the prior to the ratification, and while goods, or time of sale, or when the the judgment was one only in name. money was received, or under what If the confession states a "promissory circumstances, nor how much of the note," implying a consideration, or indebtedness is for money and how "services," or "advances," or both, much for goods; and the judgment as the source or ground of indebtedconfessed is prima facie fraudulent: ness, the creditor, always keeping Cordier v. Schloss, 18 Cal. 576. It within the limits of the terms used, was held that it should appear by may prove all matters explanatory. some form of direct statement that Beyond this he cannot go. To allow at the very instant when the judg. him to go further, and prove a claim ment was confessed the relation of which the statement not only does creditor and debtor was on foot, and not include, but excludes by necessary to the extent stated in the judgment: intendment, would be to allow him St. Clair Denver v. Burton, 28 Id. 549. to prove his judgment to be virtuous To rebut the presumption of fraud, by proving it to be false: Wilcoxson the facts proved must be consistent v. Burton, 27 Id. 235. It is not with the averment of the statement necessary that plaintiff, in a suit by a and in support of them: Pond v. Daven- creditor to set aside a judgment on

confession, should be either a judgment or execution creditor. A lien acquired by attachment suffices: Scales v. Scott, 13 Id. 76; Heyneman v. Dannenberg, 6 Id. 376; S. C., 65 Am. Dec. 519. A slight mistake in the computation of interest, the date being given, is no evidence of fraud. It was held that where judgment was 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 Oct. 11, 1862,
of the interest was fraudulent, and § 252.
the entire note therefore held void
against creditors: Scales v. Scott, 13
Cal. 76. Where fraud is alleged, the
facts must be set forth: Meeker v.
Harris, 19 Id. 289; S. C., 79 Am. Dec.
215. A general allegation that the
transaction was to hinder, delay, and
defraud is not sufficient: Id. It seems
that a debtor may prefer a particular
creditor by giving a confession of judg-
ment: Meeker v. Harris, supra.

$253.

Same, contin

judgment by
installments.

§ 256. [253.] If it be for the purpose of securing the Oct. 11, 1862, plaintiff in the judgment against a contingent liability, it shall state plainly and concisely the facts constituting gent liability. such liability, and shall show.that the sum confessed Execution on therefor does not exceed the same. When judgment is given so as to be payable in installments, executions may issue to enforce the payment of such installments as they become due.

Judgment on contingent lia- forced by execution: Allen v. Norton, bility. A judgment by confession 6 Or. 344. on a contingent liability can be en

TITLE XIV.

OF SUBMITTING CONTROVERSY WITHOUT ACTION.

§ 257. Controversy may be submitted without action.

§ 258. Statement of the case and verification thereof.

§ 259. Statement to be filed with the clerk. Jurisdiction of court.

$254.

§ 257. [254.] Parties to a question in controversy Oct. 11, 1862, which might be the subject of an action at law in a court of record, with such parties plaintiffs or defendants, may may be subsubmit the same to the determination of such court action. without action, as in this title provided.

Controversy
mitted without

$ 255.

Statement and

§ 258. [255.] The parties as plaintiff and defendant Oct. 11, 1862, shall state, in writing, a case containing the facts upon which the controversy depends, and subscribe the same verification. in person or by their attorneys. Such statement shall be verified by the oaths of the parties, or where there is more than one plaintiff or defendant, by at least one of each, to the effect that the controversy is real, and the proceeding is taken in good faith to determine the rights

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Oct. 11, 1862, $255.

Statement and verification.

Oct. 11, 1862, 256.

Statement to be filed.

of the parties. Where either party to the controversy is the state, a county or other public corporation therein, or a private corporation or minor, the statement of the case may be subscribed and verified by any person who at the time sustains the relation to such state, corporation, county, or minor as would authorize the service of a summons upon him.

Submitting controversy without action. The court is restricted to the facts agreed, and its judgment cannot be based on any facts it may suppose either party can establish: Crandall v. Amador Co., 20 Cal. 74. There must be an actual controversy which might be the subject of an action at law. A court will not investigate and decide questions not regularly arising in the due course of litigation, in order to gratify the curi

osity of counsel or parties who procure them to be raised against themselves by others who feel no interest in the contest: People v. Pratt, 30 Id. 223. An officer, either of the state or of a county or city, having public funds or property under his control, ought not to enter into a stipulation in respect to the facts in a case affecting such funds or property without acting under the advice of counsel: Uhler v. Boyd, 41 Id. 60.

§ 259. [256.] The statement shall be filed with the clerk, and from the date of such filing the court shall have jurisdiction of the controversy as if the same were an action pending after a special verdict found, and shall proceed to hear and determine the same accordingly.

TITLE XV.

OF THE MANNER OF GIVING AND ENTERING JUDGMENT.

§ 260. Judgment to be entered in journal. Manner of entry.

§ 261.

§ 262.

§ 263.

If counterclaim exceeds plaintiff's demand, judgment for defendant.
Judgment in actions for the recovery of personal property.
What entry to state in judgment for want of answer.

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Entry of judg

§ 266. Judgment notwithstanding the verdict.

§ 267.

When entry of judgment made after motion for new trial decided in

vacation.

§ 268. Entry of judgment after the time prescribed.

Dec. 20, 1865, 8. § 260. [257.] All judgments shall be entered by the clerk in the journal, and shall specify clearly the amount ment, how and to be recovered, the relief granted, or other determination of the action. If entered in vacation, the entry shall be entitled and dated substantially as follows:

made.

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