
    The First National Bank of Findlay v. John S. Trout, Laura D. Trout et al.
    
      Promissory note — Warrant of attorney to confess judgment— Faihire to fill blanks in confession clause — Jurisdiction of persons.
    
    A promissory note with warrant of attorney to confess judgment thereon should be so interpreted as to give effect to the intention of the parties ; and a judgment thereon confessed against the makers is not void for want o'f jurisdiction of their persons if the terms of the warrant indicate an intention to authorize it, notwithstanding a failure to fill blanks intended to be filled with words giving fuller expression to that intention.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Hancock county.
    The Farmers NationaLBank of Findlay brought suit in the court of common pleas to subject real estate of J. S. Trout in Hancock county to the payment of liens. The cause was appealed to the circuit court where it was tried upon issues joined by the several pleadings of the plaintiff in error and Laura D. Trout.
    In its cross-petition the plaintiff in error asserted the lien of two judgments rendered by the common pleas court of said county in its favor and against John S. Trout and one I. N. Smith on the 15th day of June, 1893, each for the sum of $216.00 and costs, and of another judgment rendered by said court in its favor and against J. S. Trout, Dec. 18,1893, for $288.00 and costs.
    Laura D. Trout asserted the lien of a mortgage executed to her by J. S. Trout, Sept. 23, 1893, to secure the payment of a promissory note of that date for $1,872.00, and she denied the validity of the judgments in favor of the plaintiff in error because they were rendered without jurisdiction of the person of J. S. Trout.
    The only evidence offered upon the trial was the complete records of the causes in which the two judgments of June 15,1893, were rendered. From the records it appears that the judgments were rendered upon confession by an attorney acting upon warrants attached to the notes, the following being a copy of the notes and warrants:
    ‘ ‘$200.00 Findlay, Ohio, June 11, 1892.
    One year after date for value received I promise to pay to the order of Will E. Heck, Two Hundred Dollars with interest at the rate of eight per centum per annum at..............................and.............................hereby authorize any attorney at law to appear in any court of record in the United States after the above obligation becomes due, and waive the issuing and service of process and confess a judgment against ..........................., in favor of the holder hereof, for the amount then appearing due, together with costs of suit, and thereupon to release all errors and waive all right of appeal.
    I. N. Smith,
    J. S. Tbout.
    Waiving demand and notice,
    Will E. Heck.”
    Upon this evidence the circuit court found that the judgments were not valid liens upon the premises and ordered distribution of the proceeds of sale to the mortgagee.
    
      J. A. <& K V. Hope, for plaintiff in error.
    By reference to the notes, correct exhibits of which are given as above stated, it will be noticed that the notes were joint and several promissory notes, dated at Findlay, Ohio, June 11,1892, signed by I. N. Smith and J. S- Trout to the order of Will. E. Heck, and by him indorsed in blank to the Bank, warrant of attorney authorizing any attorney at law to appear in any court of record in the United States and waive the issuing and service of process and confess a judgment in favor of the holder of the note to the amount then appearing to be due. And being indorsed by the payee takes the case out of the case of Spence v. Emerine, 46 Ohio St., 433; Freeman on Judgments, 4th Ed., Volume 2, section 545, pages 941 and 942; Mason v. Smith, 8 Ind., 73; Gambia v. Howe, 8 Black-ford, 133; Sweezey v. Kitchen, 80Penna. State, 160; Osgood v. Blackmore, 59 Ills., 261; Packer v. Roberts, 140 111., 9.
    There is a difference between a total want of jurisdiction and jurisdiction defectively acquired. In the former case a judgment is void; in the latter it may be voidable, but not void, and the only remedy to get rid of the judgment is by proceedings in the court in which the judgment was rendered, or by error to the appellate court. Freeman on Judgments, Volume 1, section 126.
    It seems to us, and we confidently claim that the common pleas court of Hancock county had jurisdiction of the subject matter. Clearly and unquestionably the court had jurisdiction to render a judgment upon a promissory note.
    It also had jurisdiction of the person because John S. Trout was a resident of the county, and while summons was not issued in the case, his appearance was entered by an attorney of the court by virtue of the warrant of attorney. Section 118, Volume I, Freeman on Judgments, 4th Ed.
    Thus we have the finding of the court of the appearance of the defendants by their attorney, the execution by defendants of the note and warrant, the appearance of defendant waiving the issuing and service of process and the confession of the judgment. These are facts found by the court, jurisdictional in their very nature on confession of the judgment.
    Even if the jurisdiction was defectively acquired, still this judgment, which we claim to be absolute and valid, if held by the court that the jurisdiction was defectively acquired cannot be held void, but only voidable and the only remedy by proceedings in the trial court for error to appellate court. Callemv. Ellison, 13 Ohio St., 446; Mg Curdy v. Baughman, 43 Ohio St., 79; Wehrle v. Wehrle, 39 Ohio St., 366; /Spoors v. Coen, 44 Ohio St., .502.
    In the 23rd American State, pages 103 to 119 in notes to the case of Morrill v. Morrill, authorities are collected and the doctrine here contended for fully sustained. Freeman on Judgments, Volume 1, section 131; Volume 2, Freeman on Judgments, 4th Ed., section 558.
    A subsequent mortgagee cannot question the validity of a judgment confessed by the mortgagor, .which constitutes a lien upon the mortgaged premises, on the ground of the illegality of the consideration of the indebtedness upon which such judgment is founded where the mortgagor himself could not. file a bill to set aside the judgment. Bhufelt v. Bhufelt, 37 Am. Dec., 381, 9 Paige’s Chancery, 137; 384 Am. Dec., Walworth, Chancellor, citing French v. Shotwell, 5 Johns Ch., 567.
    
      John Poe, for defendants in error.
    It will be seen that from these pretended warrants of attorney that there is no authority to confess judgment against the makers or against any person. It is signed by Smith and by Trout. It cannot be extended in its scope or effect by construction nor by an insertion of a word which it does not contain. 19 Ohio St., 536; Spence v. JEmerine, 46 Ohio St., 433.
    Observe the reading of these warrants of attorney. The first purports to authorize any attorney at law in any court of record * * * and waive the issuing and service of process and confess a judgment against................................
    Here is no authority given the attorney to appear in court for the maker, but only if he should be in court he might confess a judgment.
    The second authorizes the attorney to .appear in court but does not say for whom he shall appear. In neither is anyone mentioned or suggested whose appearance the attorney is to enter, and no one is mentioned or suggested against whom the judgment is to be confessed.
    These notes are both written, ‘ ‘I promise to pay, ’ ’ and are joint as well as several. 21 Ohio St., 163. And in the light of this circumstance the blanks in the instrument become more significant.
    It is said the first blank means nothing.
    Observe: If we follow the form of the note this power should read, “and I authorize attorney to appear for me and to confess a judgment against me. ’ ’ If we call the note a joint note and make the power conform to this idea, then it would read, ‘ ‘and we authorize attorney to appear for us and confess a judgment against us.”
    Three things are necessary to a valid judgment:
    1st. A court.
    2d. ■ A plaintiff in court in whose favor the court may render judgment; and
    
      3d. A defendant in court against whom, the judgment in favor of the plaintiff is to be rendered.
    We have in this case:
    1st. A court.,
    2d. A plaintiff in court.
    But that is all; we have no defendant in court.
    It is admitted that there was no jurisdiction unless derived through this power of attorney. This is not a power of attorney to appear for anybody nor to confess judgment against anybody.
    A judgment note is a dangerous weapon at best, and the courts will not permit it to be fired “in a crowd” but the party to be the victim must be specifically singled out by the agreeement so no random shots shall be fired which might injure some one who never agreed to “face it.” Sheldon’s Lessee v. Oren Neioton, 3 Ohio St., 494; Spoors v. Com, 44 Ohio St., 497.
    This record shows that by virtue of this power only of the attorney entered appearance, confessed, etc. But the power on which this was done is- itself part of the record and is inconsistent with the claim that the finding of the court is sufficient to give or show jurisdiction in the court.
    Besides, there is no finding by the court that it had jurisdiction, but the finding is that by virtue of this power only the attorney came in. If then the power is invalid of course there was no jurisdiction. Suppose the court journal recited that the attorney appeared and confessed judgment by virtue of the note and it had no power at all attached and made all the finding's here made, would all such findings show jurisdiction?
   Shauck, J.

Upon the question presented no consideration is due the suggestion of counsel for the mortgagee that judgment notes are dangerous instruments. Their use in this state is inveterate, and it is not to be discontinued by violence to the rules of interpretation. Does the language used in these instruments show that the makers intended to authorize an attorney to appear for them, waive summons and confess judgment against them and in favor of the holder of the note? That the power was to be exercised in favor of the holder of the note could not have been made clearer.

Notwithstanding the use of the singular pronoun in the obligatory part of the instrument, it is settled that it is the promise of both makers, their obligation being several as well as joint. Wallace v. Jewell, 21 Ohio St., 163. No reason appears why the use of that number should limit the aüthority conferred by the warrant any more than the obligation to pay. Nor does any substantial defect in the warrant result from the omission to fill the blanks. By the terms of the instrument the makers of the note are the donors of the power which is conferred. Their relation to the instrument and the use of the copulative conjunction sufficiently indicated the persons against whom judgment should be rendered. The instruments as executed express elliptically what would have been expressed more fully if the blanks had been filled. The language actually employed in the power suggests “we” and “us” as the only words which could, with propriety, be inserted in the blanks. Sweesey v. Kitchen et al., 80 Pa. St., 160; Packer v. Roberts, 140 Ill., 9.

Judgment of the circuit court reversed and judgment for plaintiff in error.  