
    Rosebrough v. Ansley et al.
    1. A judgment for a sum greater than the amount due upon the cause of action as stated in the record is erroneous; and the previous consent of the parties that such judgment might be rendered does not cure the error.
    2. Sections 3Tl and 378 of the code of 1853, authorizing a judgment without pleadings, apply only to a proceeding wherein the debtor appears personally in court and confesses judgment.
    3. Where money is loaned at the highest rate of interest allowed by law, a contract to pay a sum in addition to'such rate in consideration of an extension of the time of payment is usurious.
    
      Error to the District Court of Logan county.
    The petition in the original action, filed April 23, 1873, was as follows:
    “ The plaintiff says:
    “ 1. On or about the 8th day of November, a. d. 1870, he was duly appointed and qualified as executor of the estate of Mary G-affield, theretofore .deceased, by the Probate Court of Logan county, Ohio, and is now such executor.
    “ 2. In the lifetime of the said Mary Gaffield, and on the 1st day of July, a. d. 1870, said defendants, William Ansley and J. S. Ansley, made their promissory note in writing, of that date, and then and there delivered the same to the said Mary Gaffield, and thereby promised to pay to the said Mary Gaffield or order the sum of thirty-seven hundred and thirty-three dollars in twelve months after the date thereof, with ten per cent, interest from, date, until paid, for value received.
    “3. There are no credits thereon, except only the following :
    “ ‘ December 16, 1871, five hundred dollars.
    “ ‘ March 19, 1872, three hundred dollars.’
    “ 4. There is now due the plaintiff, as said executor, from said defendants, on said note, the sum of thirty-three hundred and fifteen dollars ($3,315), with interest thereon from the 19th day of March, a. d. 1872, for which sum he asks judgment against said defendants.
    “ McLaughlins & Dow,
    
      ‘■‘■Plaintiff’s Attorneys.”
    
    On this petition a summons was issued and served on defendants.
    Afterward, on the 24th day of May, 1873, a paper in the handwriting of plaintiff’s attorney, was filed in said case, of which the following is a copy:
    
      “Agreement. — Defendants and plaintiff agree herein as follows, to wit:
    
      “ Defendants agree to confess judgment to be entered on the 3d day of June, 1873, in the sum of $4,227.26, to bear interest until paid, at the rate of eight per centum per annum.
    “ And the plaintiff agrees to forbear and consent to stay of execution on the whole of said judgment for six months; on three-fourths thereof Tor one year; on one-half thereof for eighteen months, and on one-fourth thereof for two years. Provided no default be made in either of said payments at expiration of stay.
    “ Witness the hands and seals of the parties this 24th day of May, a. d. 1878.
    “ Henry Rosebrough, JEx’r,
    
    “ By McLaughlins & Dow, Ms Attorneys, [l. s.]
    “Wm. Ansley, [l. s.]
    “ J. S. Ansley, [l. s.]”
    Afterward, on the 31st day of May, 1873, a paper in the handwriting of plaintiffs attorneys, was filed in the said case, of which the following is a copy:
    
      “Answer. — And now comes the defendants, William Ansley and J. S. Ansley, and waiving their right of rule day for pleading, file this their answer and admit their indebtedness on said note to the plaintiff in the sum of $4,227.26, and they hereby confess judgment herein for said amount, and ask the court to render judgment herein against them in said sum of four thousand two hundred and twenty-seven dollars and twenty-six cents, and they also ask the court, in accordance with the agreement of forbearance herein filed, to order stay of execution upon the whole of said judgment for six months; on three-fourths thereof for one year; upon one-half thereof for eighteen months; and upon one-fourth thereof for two years. The whole bearing interest until paid, at the rate of eight per centum per annum. Such stays on condition that no default be made in payments. “Wm. Ansley, [l. s.]
    “ J. S. Ansley, [l. s.]”
    Afterward, on the 3d day of June, 1873, which was the first day of the term of the common pleas court, the following journal entry was made in said case, without any other or further pleadings, or cause of action, than as above stated:
    “ This cause being before- the court upon the petition of the plaintiff, an agreement in writing signed by the parties and filed herein, and upon the answers of the said defendants acknowledging indebtedness to plaintiff, and asking the court to render judgment against them and in favor of the plaintiff, and the court being fully advised in the premises, finds there is now due from the defendants to the plaintiff upon said note and agreement, the sum of $4,227.26. "Wherefore, it is considered by the court that the plaintiff recover of the said defendants, William Ansley and J. S. Ansley, said sum of four thousand two hundred and twenty-seven dollars and twenty-six cents, together with his costs herein expended, taxed at $-.
    And it is ordered according to said agreement that execution be stayed on the whole of said judgment for six months ; on three-fourths thereof for one year; on one-half thereof for eighteen months, and on one-fourth thereof for two years, and that said judgment bear interest at the rate of eight per cent, per annum.
    “ And it is further ordered that stays of execution shall be on condition that no default be made in the payments of any one of said installments.”
    On error prosecuted by the defendants below, this judgment w'as reversed by the district court, and this proceeding is now prosecuted to reverse the judgment of reversal.
    
      McLaughlins & Dow, for plaintiff in error:
    The defendants in error are estopped from denying the validity of the judgment by their consent to the judgment in the amount for which it was taken. Salmond v. Price, 13 Ohio, 368; Wilcox v. May, 19 Ohio, 410; Haighway v. Pendleton, 15 Ohio, 753; Elliott v. Elmore, 16 Ohio, 29. A judgment rendered by consent of parties can not be reversed on error. Wills v. Martin, 1 Ohio St. 386; Jackson v. Jackson, 16 Ohio St. 163.
    
      
      West, Walker & Kennedy, for defendant in error:
    To authorize a judgment by confession the defendant must be shown to have “personally appeared” in open court. Section '377 of the code of 1853. A debt or cause of action must be shown to have existed against him. Section 378 of the code.
    The record of this cause in the common pleas court does not contain a single requisite of a judgment by confession.
    The judgment was erroneous, for that it included usurious interest. •
   McIlvaine, J.

The principal objection urged against the judgment of reversal rendered by the district court is that the judgment of the court of common pleas was rendered by consent of the parties. We are aware of the general rule that a reviewing court will not reverse a judgment at the instance of a party who consented thereto, but think the record before us discloses a state of facts which form a proper exception to the rule. Whether the parties to a judgment consent or dissent, the judgment must nevertheless be regarded as the act and decision of the court, and, if the court be without authority in the premises, its judgment can not be sustained on the ground that consensus tollit errorem.

No one would contend that a judgment would be sustained on the ground of consent if the record showed that no cause of action existed against the party consenting; and we think it is equally fatal to a judgment under our practice, if no statement of the cause of action appear on the record. In ordinary practice the cause of action must be stated in the pleadings, and the judgment must be confined to the cause of action so stated. An exception to this practice is found in sections 377 and 378 of the civil code of 1853. These sections read as follows:

“ Sec. 377. Any person indebted, or against whom a cause of action exists, may personally appear, in a court of competent jurisdiction, and, with the assent of the creditor, or person having such cause of action, confess judgment therefor; whereupon judgment shall be entered accordingly.
Sec. 878. The debt or cause of action shall be briefly stated in the judgment, or in a writing to be filed as pleadings in other actions.”

It will be observed that, in a proceeding under these sections, the cause of action must be stated on the record, either in the judgment or in a writing filed as pleadings. Rut we can not look to the judgment, or the paper filed as pleadings, for a statement of the cause of action, in the case now before us, for the reason that the proceeding does not come within the provisions of these sections, inasmuch as the record does not show that the parties consenting to the judgment personally appeared in open court. Their appearance in the action was effected by service of summons, and their consent to the judgment, as well by the alleged answer as by the written agreement, was previously given and filed in vacation.

IVe must therefore look to the pleadings for the statement of the cause of action, and the only cause of action therein stated is found in the petition, and is a balance of $3,315, with interest from March 19, 1872, claimed to be due upon a certain promissory note. The court of common pleas had no power or authority to render judgment upon any other or different cause of action. The judgment rendered being for $4,227.26, was largely in excess of the debt stated in the petition, and, to the extent of such excess, was erroneous and without authority. The consent of the parties to such excessive judgment was as ineffectual to confer authority upon the court to render it, as if there had been no cause of action stated in the pleadings. Notwithstanding the written consent on file, it was the duty of the court to look into its record and ascertain whether the cause was one in which a judgment could be properly Tendered, and to limit its judgment to and by the cause of action therein stated.

It is also contended that the excess in the amount of the judgment, over the amount due on the note, was allowed in consideration of the plaintiff’s agreement to forbear execution ; and the defendants, having enjoyed the benefits of that agreement, should be estopped from denying its validity. In answer to this contention, it is enough to say that any agreement, by a debtor, to pay his creditor more than the legal rate of interest, for the use of the money and forbearance to collect, is usurious and void, and it is against the policy of the law to estop a party from showing usury in his unexecuted contracts.

Judgment affirmed.  