Fortune v. Bartholomei, 62 Ill. App. 290 (1895)

Jan. 22, 1895 · Illinois Appellate Court

62 Ill. App. 290

Peter Fortune v. Frank Bartholomei.

1. Confession of Judgment—For Bent Due.—Under a power of attorney contained in a lease, by which the lessee authorizes his attorney, for him and in his name, on default by him of any of the covenants of the lease, or upon complaint made by the lessor, or his assigns, to enter his appearance, waive service of process and confess judgment for any rent which may be due to said lessor, by the terms of the lease, with costs, and also to file a cognovit for the amount of such rent together with costs, a judgment may properly be confessed for the amount of rent due as shown by the lease and costs.

Motion to Vacate Judgment by Confession.—Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the October term, 1895.

Affirmed.

Opinion filed January 22, 1895.

Burton & Beichmann, attorneys for appellant.

Frederick S. Moffett, attorney for appellee.

Mr. Justice Shepard

delivered the opinion of the Court.

The only substantial question in this case is whether a valid judgment can be entered by confession for rent due under the terms of a lease which contains a warrant of attorney purporting to authorize such confession.

The lease contained covenants to pay as follows:

“First, to pay as rent for said premises the sum of $3,533.33, payable in thirty-six installments of $100 each, in advance upon the first day of each month of said term.

Fifth, to pay (in addition to the rents above specified) all water rents and gas bills levied and charged upon said demised premises, for and during the time this lease is granted, and in case no water rents are levied specifically upon said premises, to pay all of the water rents levied or charged upon the building in which said demised premises are situate; and in case said water rates and gas bills shall not be paid as soon as the same are due, that the said party of the first part shall have the right to pay the same, which amounts so paid, together with any amounts paid by first party for cleaning catch basins, or by reason of notice from the proper authorities to keep the said demised premises in a clean and healthy condition, as hereinbefore specified, are hereby declared to be so much additional rent, and shall be due and payable with the next installment of rent due thereafter under this lease.”

The warrant of attorney to confess judgment, so far as material to this question, was as follows :

“ And confess judgment against the party of the second ¡Dart in favor of said party of the first part, for forcible detainer of the premises, with costs of said suit, or to confess judgment from time to time for any rent which may then be due, by the terms of this lease, with costs.”

In pursuance of such power, a judgment was confessed in favor of the appellee, and against the appellant, who were the respective lessor and lessee in the lease, for $3,200, for thirty-two of the monthly rent installments provided to be paid by the terms of the lease.

Hothing but rent, pure and simple, as provided by the “ first ” covenant was included, no part of the uncertain and unliquidated items mentioned in the “fifth” covenant, being taken into account.

What we decided in Scott v. Montanya, 60 Ill. App. 481, is decisive of this case.

The judgment of the Superior Court is therefore affirmed.