Frank v. Thomas, 35 Ill. App. 547 (1890)

April 21, 1890 · Illinois Appellate Court

35 Ill. App. 547

Jacob Frank v. Mary A. Thomas.

Appeals—Bond—Giving of by One of Two Appellants—Lease—Confession of Judgment—Record—Jurisdiction.

1. The fact that an appeal bond is given by only one of two joint appellants, though cause for dismissal of the appeal, will not prevent the court from considering the errors assigned where there is no motion to dismiss.

2. A provision in a lease to two lessees that “ the party of the second part ” authorizes any attorney to enter “ their ” appearance and confess judgment, gives authority to confess judgment against both lessees.

3. Where confession of judgment on a lease is entered in term time, the copy of the lease attached to the declaration becomes no part of the record.

[Opinion filed April 21, 1890.]

Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.

Mr. John C. King, for appellant.

Messrs. Cutting & Austin, for appellee.

Garnett, J.

Judgment by confession having been rendered in the Circuit Court against Jacob Frank and Rebecca Grinsberg in favor of Mary A. Thomas, the defendants entered a motion to set aside the judgment. Upon denial of the motion defendants excepted and jointly prayed an appeal to this court, which • was granted by order of the Circuit Court, but Frank alone gave an appeal bond. The failure of the other appellant to join in the bond would have been cause for dismissal of the appeal (Hileman v. Beale, 115 Ill. 355), but appellee having made no motion to dismiss, the points made for vacating the judgment remain for brief consideration.

The judgment was for rent due on a lease made by plaintiff to the defendants. The motion to vacate the judgment states that by the terms of the lease any attorney of any court of record was authorized by “ the party of the second part,” to enter their appearance in such court and confess judgment. Appellant says the word party is singular and whether it applies to Frank or Grinsberg does not appear. The bill of exceptions sets forth nothing but the motion to vacate the judgment. Ho affidavit was submitted with the motion, nor evidence of any kind given in support of the grounds assigned therein. The judgment having been entered in term time, the copy of the lease attached to the declaration is no part of the record. Waterman v. Caton, 55 Ill. 94; Schmitt v. Baur, 33 Ill. App. 92.

The lease itself should have been presented to the court on the hearing of the motion, or if it could not be obtained, its contents should have been proved, and the bill of exceptions should have set forth the evidence. Otherwise it can not be brought to the attention of this court. But conceding that the motion truly states the terms of the power, we .think there clearly was authority to confess judgment against both defendants.

The motion also states that there had been another judgment before a justice of the peace for “ the same said supposed default in the payment of rent; ” whether the other alleged judgment was before or after the confession now complained of is not stated, but in any event, as already shown, there was no evidence presented in the bill of exceptions to sustain any of the facts charged in the motion, and so the action of the Circuit Court is left unimpeached.

The order of the Circuit Court denying the motion to set aside the judgment is affirmed.

Judgment affirmed.