CHAPIN v. THOMPSON, 20 Cal. 681

Cope, J. delivered the opinion of the Court—Field, C. J. and Norton, J. concurring. The questions in this case grew out of certain proceedings based upon a paper purporting to be an acknowledgment of indebtedness, authorizing the entry of a judgment by confession.

The paper is dated July 27th, 1850, and reads as follows: “ We, Robert Thompson, John Taylor, David Hewes and David Huntoon, defendants, hereby confess and acknowledge that there is now justly due to Horatio Chapin the sum of $1,400, with five per cent, per month interest from May 21st, 1850, for which sum of money we hereby authorize the entry of a judgment against us.

The consideration for said indebtedness is a promissory note for the above amount, made and defivered to said Chapin to secure him for so much money lent and advanced by said Chapin to and for the use of the defendants.” Then come the signatures of the parties; the name of Taylor being signed by Thompson, and that of Huntoon by Hewes; Thompson and Hewes signing for themselves also. The paper thus signed was brought into Court, and on motion of one Johnson, an order was made directing a judgment to be entered for the amount therein mentioned.

A judgment in accordance with this order was thereupon entered by the Clerk in the “ Judgment Book,” and on the twelfth of February, 1861, an execution was issued upon it by order of the Court. Since that time, various orders have been made annulling the entire proceedings, and the appeal taken is from these orders. The judgment was rendered prior to the adoption of our present Practice Act, and the matters in controversy are to be determined by the provisions of the Act of 1850.

In order to obtain a judgment by confession under that act, it was necessary to present a statement in writing, setting forth the amount for which the judgment should be entered, and authorizing the entry. If the confession was for money due, it was necessary to state concisely the facts out of which the indebtedness arose, and show that the sum confessed was justly due. The application was to be made to the Court, and the judgment was to stand upon the same footing as other judgments—the act requiring all judgments to be signed by the Judge.

The judgment was to be signed at the expiration of four days after the entry; and until signed, no execution could be issued upon it. The judgment in this case was not signed, and upon application to the Court the proceedings for its enforcement were arrested and set aside. This is complained of as erroneous; but we are of opinion that the proceedings were illegal, and that no error was committed in setting them aside. The authorities cited to show that the signing was unnecessary are not in point, for they arose under statutes different in their terms.

In addition to these proceedings, however, the Court went back and set aside the judgment entry; and this constitutes another of the alleged errors. The power of the Court to set the entry aside is not questioned, and as it had not been signed, we think an objection on that ground could not be sustained. The matter was still open, and whether the Court acted properly or not depends upon the sufficiency of the authority under which the entry was made. Our opinion upon the subject is that the authority was not sufficient, and we regard the warrant of attorney as ineffectual for any purpose.

A fatal objection to it is that it was signed by two of the defendants only— the signatures of the other defendants being attached without them consent. Of course, as to the latter, it was a mere nullity, and as no judgment could be entered upon it against them, it was equally ineffectual as to the former. The maxim, “ utile per inutile rum vitiatur,” does not apply; for the only judgment for which there was even a pretense of authority was a judgment against all. To give validity to such a judgment, it is necessary that ah should have signed, and the Court had no power to enter any other.

The warrant was the measure of its authority; and any judgment, other than that expressly authorized, would have been coram nonjudiee. The signature of Thompson and Hewes cannot be regarded as authorizing a judgment against them alone, for the provisions of the paper are directly to the contrary. They supposed that it was competent for them to confess a judgment against their codebtors as well as themselves, and this was the extent and limit of the authority given.

The rule in such cases is, that the authority must be strictly pursued ; and this rule has been repeatedly laid down and acted upon by the Courts. (5 Hill, 497 ; 15 East. 592; 7 Taunt. 452.) There are some decisions in which a different doctrine seems to have prevailed, but we are unable to perceive the principle upon which they rest. A point is made as to the conclusiveness of the record; the minutes of the Court reciting that the defendants appeared by their attorney, etc. It is contended that this recital precludes any inquiry as to the execution of the paper, as the effect would be to impeach the record.

We think, however, that as the record is incomplete, conclusive force is not to be given to its recital, and that the law of estoppels does not apply. The orders appealed from are affirmed.