majority">

Brief for American Bonding and Trust Company.

This is an application to have stricken from the record two judgments, each for a penalty, confessed by an attorney at law, and entered in vacation by the Prothonotary of the Superior Court, in and for New Castle County.

The Constitution of the State provides that “ The Prothonotary of the Superior Court may * * * * enter judgments, according to law and the practice of the Court,” and thereby limits the authority of said prothonotary to enter judgments to those cases for which the laws of the State and the practice of its Court make provision. It, therefore, necessarily follows that where a statute of the State makes definite provisions for the entry and manner of entry of any class of judgments, the authority of the prothonotary is limited by said *285statute, for no valid practice of the Court can be established which contravenes the express terms of a statute.

Constitution of Delaware, Article 4, Sec. 29.

The confession of judgment by warrant of attorney is a method of obtaining judgment depending for its validity entirely upon statute.

Black on Judgments, Sec. 52; 17 A. & E. Ency., Law (2nd Ed), 765.

The pertinent statute of this State applying to the class of judgment with which we are concerned is as follows :

“ When judgment is confessed by virtue of a warrant of attorney for a penalty, the attorney confessing the judgment shall, in a written direction to the officer entering the judgment, set down the real debt, and the time from which interest is to be calculated; which shall be entered by the said officer upon the docket of the judgment.”

Revised Code, page 811, Section 14.

Such statutes as this must be strictly construed.

1 Black on Judgments, Section 52 ; 17 A. & E. Ency. Law, (2nd Ed), 765; Bonnell vs. Weaver, 5 Biss., 22 (Opinion by Mr. Justice Miller, afterward of Supreme Court of U. S); Chapin vs. Thompsom, 20 Cal. 686 (Chief Justice Field, afterwards Justice of Supreme Court of U. S., concurred in opinion); Bons vs. Pachecho, 30 Cal., 534; Bank vs. St. John, 5 Hill 497; Butler vs. Lewis, 10 Wend., 544 ; Gandal vs. Finn, 23 Barb., 652 ; Edgar vs. Grier, 7 Iowa, 136; Edgar vs. Grier, 10 Iowa, 280; Macphetten vs. Campbell, 5 Ind., 107; Fairchild vs. Dean, 15 Wis., 225; Remington vs. Perry, 5 Wis., 138 ; Bacon vs. Raybould,10 Pacific, 481.

Indeed, the written direction to the officer entering the judgment for a penalty, under the statute above cited, in which must be set down the real debt of said judgment and the time from which interest is to be calculated, is a matter which goes to the jurisdiction of the Court, for, although a judgment by confession is to a certain extent founded on the agreement of the parties, instead of a direct *286adjudication by the Court, it is none the less, on that account, a judicial act. And since the consent of the parties cannot create a jurisdiction in excess or contravention of that conferred by law, it is equally essential to the validity of such a judgment that the statutory prerequisites to the entry thereof shall be complied with in order that the Court may have jurisdiction over the defendants therein or to issue process against them based thereon.—Black on Judgments Sec. 53.

And in the case of Rapley vs. Price, 9 Ark., 428, the Court say; that “ Where it is required by law that the execution of a power of attorney to confess judgment be proved before the judgment is confessed, such proof must affirmatively appear of record ; otherwise the Court would have no jurisdiction of the person of the maker, and the judgment would be invalid.”

So under the above recited statute of this State it is a necessary prerequisite to the valid entry of a judgment by confession, by virtue of a warrant of attorney, for a penalty that the attorney so confessing the judgment shall file with the Prothonotary of the Superior Court a written direction in which is set down the real debt and the time from which interest is to be calculated, for the statute provides that this written direction shall be given to the said prothonotary “ when the judgment is confessed ” and the word “ when ” means, upon the authority of Second Bouv. Law, Dict, page 1227, “ at the time ” or “ at that time.” And if the said written direction must be given at the very time that the judgment is confessed, such written direction is a necessary prerequisite to the entry of such judgment and the statute further provides that the said prothonotary, following the said written direction, shall enter upon the docket of the judgment the amount of the said real debt and the date of the interest in said written direction required to be set down.

Therefore, under the said statute the judgment itself is not complete nor is the record entry thereof complete until the prothonotary shall enter upon the docket of such judgment the amount of the real debt and the date of interest; so that, therefore, the application of the American Bonding and Trust Company, the surety *287in this judgment, while it is primarily based upon the failure of the attorney confessing said judgments to give the required written direction, yet it is also based upon the fact that under the statute the judgments themselves are not entered in the manner required by law and the record entries thereof arenot complete by reason of the failure to enter upon the docket of the said judgment the amount of the real debt and the date of interest.

It is further submitted that the failure to tile such written direction and the consequent failure to make the requisite entries upon the docket of said judgment is a matter which cannot now be cured by amendment.

Butler vs. Lewis, 10 Wend., 542, Chapin vs. Thompson, 30 Cal., 631; Bonncll vs. Weaver, 5 Biss., 22; Edgar vs. Grier, 7 Iowa, 136.

It is further submitted that the bond upon which this judgment was confessed is, so far as the American Bonding and Trust Company is concerned, a contract of suretyship (20 Del. Laws, Appendix, 2); and it is well settled law, both in this State and elsewhere, that the undertakings of sureties are strietissimi juris (Mayor &c. vs. Horn, 3 Harr., 190, et seg.; State vs. Smith, 9 Houst., 143 ; 2 Brant on Suretyship, Secs. 528 and 529); and it is also well settled that contracts of suretyship are regarded as having been made with reference to all existing laws of the State relating thereto and such laws are to be read into and taken to be part of such contracts— (Mayor &c. vs. Horn, 2 Harr. 190; 2 Brandt on Suretyship Secs. 528 and 529).

Knowles, for the State, replied.

Lore, C. J.:

We think this is not a jurisdictional matter, and order that the rule be discharged.

Mr. Hayes:—May we be allowed an exception to that ruling, for what it is worth ?

Lore, C. J.:

We recognize your application but not your right to an exception. You may take it in that way.

Citation profile

Relationships

How this case has been treated — in progress