Smith v. . Smith
Smith v. . Smith
Opinion of the Court
In an adversary proceeding to recover on a bond the seal imports a consideration, and the production •of the bond by the plaintiff uncancelled raises a presumption that it has not been paid. This is not the case as to “confessions of judgment” under the Code, Sec. 571. That proceeding is in derogation of common right and, to prevent the perpetration of fraud in such cases, that section requires that the consideration be stated and that it appear that the amount for which the judgment is confessed is justly due. If the statutory requirements are not complied with the judgment is irregular and void because of a want of jurisdiction in the court to render judgment, which is apparent on the face of the proceedings. Davidson v. Alexander, 84 N. C., 621; Davenport v. Leary, 95 N. C., 203. “It is not sufficient, to simply confess and enter judgment. It is essential that the confession and entry shall have the additional requisites further prescribed by The Gode, Sections 571 and 572,” (i. e. authority to enter the judgment and statement of the consideration and that *351 the amount is justly due) Sharpe v. Railroad, 106 N. C., 308, 319. In the present case the nature of the consideration is sufficiently stated. Uzzle v. Vinson, 111 N. C., 138. But there is a fatal defect in the significant failure either to allege or to set out facts which would show that the amount for which the judgment was confessed was still “justly due.” The statute .requires this to be done to confer jurisdiction. It is true the bond is averred to have been given for a valid consideration, but non constat that it was still due. There is no presumption that it was. It must appear by the affidavit. In Bank v. Cotton Mills, 115 N. C., 507, relied on by .the defendants, it is expressly and fully recited in the power of attorney to confess judgment that the debt is “justly due.” In the absence of such statement, or the statement at least of facts showing that the debt was still due, the judgment was properly held void, for without compliance with the statute on the face of the proceeding the court had no jurisdiction to .enter up the judgment. No Error.
Reference
- Full Case Name
- A. W. SMITH, ADMINISTRATOR OF ALEXANDER SMITH, v. R. P. L. SMITH Et Al.
- Cited By
- 7 cases
- Status
- Published