TITLE III. OF SUMMARY PROCEEDINGS. CHAPTER I. Confession of judgment without action. IV. Summary proceedings for obtaining pos- Judgment may be confessed for debt due or contingent liability. CHAPTER I. CONFESSION OF JUDGMENT WITHOUT ACTION. SECTION 1132. Judgment may be confessed for debt due or contingent liability. 1133. Statement in writing and form thereof. 1134. Filing statement and entering judgment. 1132. (§ 374.) 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 by this Chapter. Such judgment may be entered in any Court having jurisdiction for like amounts. NOTE. A judgment by confession having been rendered in open Court upon an allegation of indebtedness and an appearance by the parties, whatever errors intervened they cannot, at the instance of any one not a party to the judgment, be invoked to set aside or show the judgment a nullity. The judgment certainly could not be collaterally attacked by a stranger.-Cloud vs. El Dorado County, 12 Cal., p. 133; citing, also, Smith vs. Randall, 6 Cal., p. 47; Lowe vs. Adams, 6 Cal., p. 277; Saunders vs. Caldwell, 1 Cowen, p. 622. In an action to set aside a judgment by confession, to defraud creditors, it is unnecessary that plaintiff should be either a judgment or execution creditor. A lien by attach ment is sufficient. - Scales vs. Scott, 13 Cal., p. 76; Heyneman vs. Dannenberg, 6 Cal., p. 376. Judgment by confession 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 as against creditors.-Scales vs. Scott, 13 Cal., p. 76; aff'g McKenty vs. Gladwin, 10 Cal., p. 227. A judgment can be entered by confession for the amount specified in the award, in the same way that it can be for the sum mentioned in a bond, note, or other instrument, but this is a judgment by confession.-Gunter vs. Sanchez, 1 Cal., p. 48. Application by defendant to set aside judgment by confession, must show that the judgment was wrongful, or should not have been confessed, and it was considered by the Court as doubtful whether the defendant could, by his affidavit, impeach his former acts.-Arrington vs. Sherry, 5 Cal., p. 514. Judgment by confession, for benefit of a bona fide creditor, but without the knowledge of such creditor, and where defendant knew that another creditor was about to attach, is void as to the latter.-Ryan vs. Daly, 6 Cal., p. 239. If a judgment by confession is opposed by a creditor, as fraudulent against him, on the ground that the object of the debtor and the judgment creditor was to assist the debtor in forcing a compromise with his other creditors, rather than to enforce the judgment, the complaint must plead this ground of objection to the judgment. A general averment that the intent was to hinder, delay, and defraud, is insufficient. An insolvent debtor, desiring to prefer a particular creditor, may give him a confession of judgment, with the agreement between them that judgment shall not be entered on the confession, if the debtor succeeds in obtaining from his other creditors an extension-the creditor himself, in that event, also to give time; but that if the other creditors refuse such extension and attempt to attach, then that the judgment may be entered on the confession, and execution issued. Such confession, not used, nor intended to be used, to influence the negotiations with the other creditors, but simply designed to secure the preferred creditór, and, at the same time, to extend as much leniency to the debtor as is consistent with the creditor's own security, is valid.— Meeker vs. Harris, 19 Cal., p. 278; aff'g Macy vs. Kinder, 7 Cal., p. 206; Harris vs. Taylor, 15 Cal., p. 6-VOL. II. Statement in writing and form thereof. 1133. 384. A judgment by confession, without any request on the part of the creditor, and without his knowledge, is void as between the parties, and will not bar an action brought by the creditor on the same cause of action, nor will it estop the debtor from denying all the facts set forth in it; but if the creditor thereafter ratifies it, and attempts to enforce it, it will become binding between the parties to it by force of the ratification; but such ratification cannot affect rights acquired by other parties prior to the ratification. The execution of a note by the debtor to his creditor for a larger amount than is actually due, for the purpose of defrauding other creditors of the debtor, and the voluntary confession of a judgment in the same by the debtor, renders the judgment fraudulent and void as to the other creditors of the debtor. A voluntary confession of a judgment, made upon a bona fide debt by the debtor in favor of the creditor, without the knowledge of the creditor, and the issuance of an execution thereon at the request of the debtor, and a levy on the debtor's goods by virtue thereof-also, without the knowledge of the creditor-for the purpose of enabling the creditor to obtain priority over the creditors of the debtor, is a fraud upon the other creditors. The judgment is a nullity, and levy void, as to an attachment or execution in favor of the other creditors, afterwards levied on the same property.-Wilcoxson vs. Boston, 27 Cal., p. 233; commenting upon McKentry vs. Gladwin, 10 Cal., p. 227; Scales vs. Scott, 13 Cal., p. 76; Richards vs. McMillan, 6 Cal., p. 419; Cordier vs. Schloss, 12 Cal., p. 143; Cordier vs. Schloss, 18 Cal., p. 576. 375.) 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. NOTE.-See notes to Sec. 1132, ante. A judgment by confession was held invalid, unless the instrument authorizing its entry is signed by all the persons against whom it authorizes judgment to be entered. Where two persons signed a confession of judgment against themselves and two others, the judgment thereon being void as to those not signing, was equally so as to those signing, and the authority being to enter a judgment against four, could not be entered against a less number.-Chapin vs. Thompson, 20 Cal., p. 681. If the statement upon which a voluntary confession of judgment is entered does not correctly describe the debt, the judgment is void as to the creditors of the judgment debtor.-Wilcoxson vs. Boston, 27 Cal., p. 233. An application by a judgment creditor to set aside judgment by confession, should show that the claim was not just, and that the judgment ought not to have been confessed. A junior judgment creditor has no right to join with the defendant in an application to set aside the judgment by confession. A junior judgment creditor must resort to a Court of equity if he is dissatisfied with the good faith of the judgment by confession.-Arrington vs. Sherry, 5 Cal., p. 514. A statement for confession of judgment, to the effect that the indebtedness is upon a note, etc., is insufficient. A statement that the indebtedness is for goods sold and delivered, and money had and received, is insufficient, because 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. A statement to the effect that plaintiffs are owners of a note, that the note was given for goods sold and delivered by plaintiff's to defendants, and money had and received by defendants, is insufficient, and the judgment rendered thereon prima facie fraudulent against creditors. If each of the defects above named were not in themselves fatal to the judgment, yet the failure to state the amounts due, severally, for goods and for money, would be fatal, just as such an averment is insufficient in an ordinary complaint.-Cordier vs. Schloss, 18 Cal., p. 576. In a judgment by confession the omission to fully comply with the statute to set forth explicitly the facts and circumstances upon which the debt was incurred, does not ipso facto make the judgment void; it merely throws the Filing statement and entering judgment. How, in burden of proof on the judgment creditor, if his judgment is contested by other creditors, of proving that his judgment was fair, and not fraudulent. But such a failure to make all the disclosures required by the statute is prima facie evidence of fraud.-Richards vs. McMillan, 6 Cal., p. 419; affirmed in Cordier vs. Schloss, 18 Cal., p. 576. A judgment by confession upon a statement which does not sufficiently state the facts out of which the indebtedness arose, nor that the amount is justly due, is not a nullity on its face. It cannot be collaterally attacked. It can only be called in question by the creditors of defendant on the ground of fraud.— Lee vs. Figg, 37 Cal., p. 328; commenting on King vs. Davies, 34 Cal., p. 100; Cloud vs. El Dorado Co., 12 Cal., p. 133; Arrington vs. Sherry, Cal., p. 513; Richards vs. McMillan, 6 Cal., p. 419; Cordier vs. Schloss, 12 Cal., p. 143; s. c., 18 Cal., p. 576; Wilcoxson vs. Burton, 27 Cal., p. 229; Chapin vs. Thompson, 20 Cal., p. 681; Miller vs. Earle, 24 N. Y., p. 111. 1134. (§ 376.) 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. 1135. In a Justice's Court, where the Court has authority to enter the judgment, the statement may be filed with the Justice, who must thereupon enter in his docket a judgment of his Court for the amount confessed, with three dollars costs. If a transcript of such judgment be filed with the County Clerk, a copy of the statement must be filed with it. CHAPTER II. SUBMITTING A CONTROVERSY WITHOUT ACTION. SECTION 1138. Controversy, how submitted without action. 1140. Judgment may be enforced or appealed from as in an action. |