ODELL v. REYNOLDS et al., 70 F. 656

gEVERENS, District Judge, having stated the case as above, delivered the opinion of the court. The first question to which we shall give attention arises upon the objection of the defendant to the entry made by the sujierior court for Cook county on the 26th day of February, 1893, in correction and amendment of the judgment it had rendered on the 18th day of April, 1892.

The grounds of that objection, as stated by counsél for defendant in error in argument, are: First, that the court had no power to make the order, for the reason that the term at which the judgment was rendered had expired; and, secondly, that the order was made without any notice to the defendant of the proposed action, and without his knowledge, .1 t must be admitted that, by the expiration of the term, the court had no longer any power or authority to alter the judgment actually rendered at the former term in any essential particular.

But if is too much to say that the court had not the power to correct it so as to make it conform to the fact; that is to say, to the actual proceedings in court and the judgment directed' to be entered thereon. On the contrary, it is a power inherent in the authority of every court having general jurisdiction to correct errors in the making up of its records whereby they fail to express the truth in regard to its proceedings. And this power may be exercised by the court at any time when the error is brought to its attention, and no injury is likely to happen to the parties or other persons by its exercise.

No doubt, such power should be cautiously and discreetly used, but that it exists is well established by authority. It is the settled doctrine of the English courts, and in most of the courts of this country. Freem. Judgm. § 71; Gilmer v. City of Grand Rapids, 16 Fed. 708; In re Wight, 134 U. S. 136, 10 Sup. Ct. 487; Emery v. Whitwell, 6 Mich. 474; Frink v. Frink, 43 N. H. 508.

In the second case just cited, Wight had applied to the circuit court for the Eastern district of Michigan for a writ of habeas corpus to be delivered from imprisonment in the House of Correction at Detroit, to which he had been sentenced by the district court for the same district. The superintendent of the House of Correction responded that he held Wight in custody under that sentence.

Thereupon the petitioner showed that after his trial and conviction, but before sentence, the case was by an order duly made by the district court removed into the circuit court, and thereupon claimed that the district court lost its jurisdiction over him and so that its sentence was void.

There was' no record of anything done in the case in the circuit court by way of remanding it; but the judges of that court, recollecting that they had made an order at a former term remanding the case to the district court, directed instanter that the order be entered nunc pro tunc, and thereupon discharged the writ, and remanded the petitioner. The supreme court held that this did not transcend the power of the court.

In the present case counsel for the defendant submit as a vital objection to the action of the" Illinois court in making the entry for correction of February 2G, 1893, that “to make that finding, and insert it in the judgment nunc pro tunc, was to materially add to and substantially modify-the judgment that was rendered at the prior term; for it involved the very character and scope of the agency to which alone Reynolds had committed the right to enter his appearance and confess judgment.” But the consequence' of the' correction is no test of the power of the court to make it.

In Wight’s Case, just cited, the effect- of the entry was to annihilate the whole foundation on which his petition rested. In Emery v. Whitwell it was held that when the files of the cas.e clearly show that judgment for a definite sum should have been entered, and was intended by the court to be entered, but the entry actually made was defective, it is entirely competent to amend the record to what it should have been, at any time thereafter.

Sometimes the propriety of such action exists in cases where the correction may be made upon that which appears in the record itself, and is necessary to make it consistent and harmonious, one part with another. In other cases it is necessary in the interests of justice to act upon matters not appearing from the record; for example, things resting in the recollection of the judge, or evidence adduced aliunde. In the former case notice to the parties is not necessary. Ro new thing is brought upon the record.

The court, for the clearer and more accurate expression of its final action, molds into form that which is fairly and reasonably deducible from the whole record, taken together. There is nothing to litigate, Ao right is substantially affected. Freem. Judgin. § 72a; 1 Black, Judgm. § 164; Emery v. Whitwell, ubi supra; Matheson’s Adm’r v. Grant, 2 How. 263. In the latter case the question of the necessity of notice may depend upon the source from which the evidence comes upon which the action is to be taken.

If it is the recollection of the court, it is doubtful whether notice is required, for the reason that it is not open to contest. At all events, it would seem, upon the authorities, that corrections of the record made by the court upon its own recollection would not be collaterally assailable, though made without notice. If the action is based upon other evidence, it would seem to be settled by a preponderance of authority that notice is required, and that the proceeding for correction would be void without it. Water Co. v. Pillsbury, 60 Me. 427; Weed v. Weed, 25 Conn. 337; Cook v. Wood, 24 Ill. 295; Hill v.

Hoover, 5 Wis. 386; Berthold v. Fox, 21 Minn. 51; Poole v. McLeod, 1 Smedes & M. 391; Wallis v. Thomas, 7 Ves. 292. The case of O’Conner v. Mullen, 11 Ill. 57, which is relied on by the defendants, was one which went up on error from the order of the court allowing llie amendment. The court held that notice should have been given, even though it had been made upon matter appearing of record, but the case is not an authority upon the question when it arise» collaterally.

If the power to amend exists by reason of the original jurisdiction in tlie case, it is difficult to see how. there is more than mere error, at all events, in dispensing with notice. In the present case the correction or amendment, whichever it be called, related to two tilings. It declared that tlie defendant: came by Edward Hagemann, Jr., an attorney at law of the court, who appeared as attorney in fact, and that the judgment was rendered upon the “notes” tiled in the case, instead of the “note” filed, as in the original entry.

In tlie cognovit upon which the judgment rested, it was stated that the “defendant'in the above entitled suit, by Edward Hagemann, Jr., liis attorney, comes and defends,” etc.; and it was signed by Hagemann as “Defendant's Attorney.” It was in all respects in the customary form of a pleading filed by an attorney at law. Tlie judgment, as originally entered, recited that the defendant came by Edward Hagemann. his attorney in fact, and filed therein liis warrant of attorney and his cognovit, confessing the action of the plaintiff against him.

The statute of Illinois forbade the practicing in the courts of the state of any one who was not an attorney at law. Rev. St. Ill. 1891, c. 13, § 1. And the court had judicial knowledge, whether Hagemann was an attorney of ihe court or not., 1 Wharf. Ev. § 324. How, the cognovit thus recited was ihe one signed and filed by Hagemann as an attorney at law; there was no other; and that was tlie basis of the judgment. It was an erroneous recital, but the truth was in the record, and furnished the means of correction. Bo in regard to the notes.

Tlie declaration counted upon all the 12 notes separately, and claimed damages for the nonpayment of each and all; and the notes were filed in court. The cognovit confessed damages for Hie nonpayment of all, in the sum of 825,000, and did not confess damage's for the nonpayment of any one note. The judgment recites that, by the cognovit, it was confessed that the plaintiff liad sustained damages to the amount of $25,000. It was manifest that the reference in tlie judgment to the “note filed in .said canse” was a mere clerical misprision.

We are far from thinking that the judgment needed any such correction of its recitals to render it effectual, for it: Avas probably a ease' within the statute of jeofails. Conrad v. Griffey, 11 How. 480; Hall v. Jones, 32 Ill. 38, 43 (in which latter case it Avas also said that the cognovit: releases all clerical errors in entering the judgment, and justifies a disregard of inconsistencies which are set right by an inspection of the Avhole record). But, if sueli correction was required, we are of opinion that it was within the power of the court to make it.

The questions which remain are those which concern the exercise of the power given by the warrant of attorney, and the jurisdiction of the superior court over the defendant, and its power to render the judgment. The principal objection to the validity of the assumption of jurisdiction is based upon the ground that the powers of attorney were several, and only authorized the confession of a several judgment upon each note. Upon the footing of this proposition, it is contended that the confession of one judgment upon all of them was in excess of the power, upon the application of the doctrines of special agency.

But, while those doctrines have application until the vesting of the authority of the court over the case and person of the defendant, yet when that is accomplished, and the matter becomes subject to the incidents of judicial action, they apply with more limited force. Judgments by confession, without action, like other judgments, are rarely “void” in the extreme sense of the term. Defects in a confession do not impair the effect of the judgment between the parties, and it cannot, for such reasons, be collaterally attacked, but must be respected until set aside in some appropriate method.

For example, the judgment is not void because it is entered before the debt is due, or is for too large a sum. Freem. Judgm. § 557; 1 Black, Judgm. § 67; Patton v. Stewart, 19 Ind. 233. “In contemplation of law, a judgment on a warrant' of attorney is as much

an act of the court as if it were formally pronounced on nil dicit or a cognovit; and, till it is reversed or set aside, it lias all the qualities and effect of a judgment on a verdict.” 1 Black, Judgm. § 78. Plence, if the court has acquired jurisdiction, any mere irregularity in the proceedings must be rectified in that case. The judgment is not by reason of such irregularities rendered void. As was declared in Cornett v.

Williams, 20 Wall. 226: “The settled rule of law is that, jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud.” By his warrant of attorney, Reynolds, in express terms authorized any attorney at law as his attorney for him, and in his name, to appear in any court of record in the United States or territories, and to waive service of process. When that was done, the case was before the court.

If subsequent irregularities occurred, the authority remained with the court, Avithin reasonable limits as to time and circumstances, to give relief against any injury to the author of the power. Rogers v. Rogers, 1 Paige, 188; Ligon’s Adm’rs v. Rogers, 12 Ga. 281; McCormick v. Wheeler, 36 Ill. 114. The courts of law exercise an equitable jurisdiction orrer judgments rendered by them upon warrants of attorney, which it has been held by the supreme court of Illinois may be exercised at the term of the judgment or subsequently. Lake v. Cook, 15 Ill. 353; Wyman v. Yeomans, 84 Ill. 403; Burwell v. Orr, Id. 465.

It was said by the chief justice in delivering the judgment of the supreme court in Machine Co. v. Radcliffe, 137 U. S. 287, 11 Sup.

Ct. 92 (a case from Maryland, in which the judgment sued on was rendered by a court in Pennsylvania, upon a warrant of attorney given by a citizen of Maryland): “The subject-matter of the suit against him in Pennsylvania was merely the determination of his personal liability, and it was necessary to the validity of the judgment, at least elsewhere, that it should appear from the record that he had been brought within the jurisdiction of the Pennsylvania court by service of process or bis voluntary appearance or that lie had in some maimer authorized the proceeding.

By the bond in question, he authorized ‘any attorney of any court of record in the state of New York, or any other «Tate, to confess judgment against him Ius] for the said sum, with release of error»,* etc.

But the record did not show, nor is it contended, that lie was served with process or voluntarily appeared, or that judgment was confessed by an attorney of any court of record in Pennsylvania.” In that: cast' flu1 judgment in Pennsylvania was held void, for the reason that no attorney of any court of record had appeared and confessed judgment for the defendant in that state, which was the only kind of appearance authorized by the warrant; but the judgment luid been entered by the clerk of the court upon the production of the bond and warrant of attorney, under a statute which auihorized such a proceeding and declared that a judgment so entered should have the same force and effect as if a declaration had been filed, and judgment confessed by an attorney, or judgment obiained in open court and in term time.

The decision in that case proceeded upon the ground that jurisdiction had never been acquired by the Pennsylvania court, for the lack of an appearance by or for the defendant in the suit. The fact that the several causes of action arising upon the notes were joined in one action did not impair the authority of the attorney to appear for the defendant. The notes were all executed at one time. Several were payable to the same person. The causes of action were such as might lawfully be joined in one suit in “any court of record” where suit could be brought.

It is the common practice where the same party holds several obligations of the kind against another. All these things the defendant must have contemplated when he gave the power. In many of the states, if several of such suits were brought by a common holder of the notes, they could be consolidated by order of the court, and one judgment rendered for the whole; and such a, course has not been supposed to affect any substantial right of the defendant. The joinder of causes of action saves costs, and it is seldom that any inconvenience to the defendant results from such joinder.

No provision in the law of Illinois, for instance, has been brought to our attention which gives an advantage to the defendant from separate suits. We are unable, therefore, to see any good reason for believing that the maker of these warrants of attorney intended to restrict them to actions which should he brought severally upon each note, instead of authorizing the common course in that regard of legal proceedings. We are of opinion that the court below erred in rejecting the transcript of the proceedings in the Illinois court, and the judgment must therefore he reversed, and a new trial awarded.