
    Charles Marsden et al. v. Horace W. Soper.
    Whether a warrant of attorney to confess a judgment upon a negotiable note, annexed to the note and forming a part of the same instrument, and which purports to authorize the confession of a judgment in favor of any holder of the note at any time after the same becomes due, is legally operative, to authorize the confession of a judgment in favor of an indorsee of such note — querub But, if ajudgment on such note be entered on confession of an attorney acting under such warrant, in favor of an indorsee of the note ; and, at the same term, the defendants in the judgment come and move the court to vacate the judgment, and afterward voluntarily consent to the dismissal of sueh.motion. — Held : That they will not be afterward allowed, on error, to allege a want of jurisdiction in the court, of the persons of the defendants.
    Error to the district court of Cuyahoga county.
    On the 16th day of June, 1858, Soper filed in the court of common pleas of Cuyahoga county, his petition against the plaintiffs in error on a note and warrant of attorney, of which he averred himself to be the legal owner and holder, and of which the following is a copy
    “Cleveland, 0., April 1,1857.- One year after date we jointly and severally promise to pay J. M. Ohamplin, or order, three thousand dollars, with interest, ten per cent., in funds par in New York City, three hundred dollars as interest to be paid on the first day of July next, value received. And we and each of us do hereby authorize and fully empower any attorney of any court of record in the State of Ohio, or elsewhere, or any other person, to appear before any justice of the peace, or any court of record, in the State of Ohio or elsewhere, at any time or term after this obligation becomes due, waive the issuing and’service of process, receive a declaration and confess a judgment against us, or either of us, in favor of awg holder of this obligation, for the amount appearing du.e on this obligation at the time of the rendition of such judgment, and costs of suit, and to release all errors, and waive all right to the appraisement of real estate on any execution issued on any judgment that may be rendered on this obligation.”
    “Charles Marsden, [seal.]
    “Silas Merchant, [seal.]
    “Ahaz Merchant, [seal.]”
    
      This note and warrant of attorney was indorsed by the payee to the plaintiff below.
    Thereupon an attorney appeared and answered, and, by virtue of the above power of attorney, confessed judgment for the amount appearing to he due on the note, calculating interest at ten per cent., and counting “ funds par in New York City,” as money ; and releasing errors, and waiving appraisement in accordance with the provisions of the warrant of attorney ; and judgment was rendered for the amount confessed and for costs.
    Immediately after the judgment follow these journal entries :
    “ The defendants release all errors herein, and waive the right of appraisal of any real estate levied on by virtue of any execution on the judgment in this case. And onthe 28th day of June 1858, being a day in said 'May term, by consent of both parties, and with leave of the court, the motion filed herein on the 19th day of June instant, to vacate this judgment, by the defendants herein, is dismissed; and judgment is rendered against the defendants for the costs thereof. Both parties in open court declare their agreement that no record shall be made of this motion.”
    
      Ingersoll & Kinsman and Kelly & Griswold, for plaintiffs in error.
    
      Ranney, Backus & Noble, for defendant in error.
   Brinkerhoff, J.

The waiver of the right to the appraisal of real estate appearing to have been made by the defendants below, being no part of the judgment of the court, a question in respect to the validity and effect of such waiver, can arise only when the plaintiffs in the judgment shall attempt to sell .real estate without such appraisal.

And the only question arising on the record, which we deem it worth while to notice, is the question whether the court of common pleas had jurisdiction of the persons of the defendants below, so as to authorize that court to take cognizance of, and to render a judgment in tbe case affecting their rights.

It will be noticed that the plaintiff in this judgment is not the payee of the note on which judgment is taken, but an indorsee; and that the warrant of attorney under which judgment was confessed, purports to authorize such confession “ in favor of any holder of this obligation,” after the same becomes due. But, it was held, in broad and general terms, in the case of Osborn v. Hawley, 19 Ohio Rep., 130, that a warrant of attorney to confess judgment, attached to a note, and forming a part of the same instrument, is not negotiable, and when the note is transferred, becomes invalid and inoperative. It is true, the report of that case does not inform us whether the warrant of attorney in that case purported to authorize the confession of a judgment in favor of the payee of the note alone, or whether its terms extended, as in this case, to any holder of the note after due. But, however this may have been in that case, we suppose that, if this judgment rested upon the confession under the warrant of attorney alone, it would be very questionable whether the court of common pleas had any rightful jurisdiction of the defendants in the judgment.

But, did they not, after the entry of judgment against them, confer jurisdiction, by such an appearance and proceeding in the case, as constituted a waiver of exception to the jurisdiction ? It seems to us that they did. They were not obliged to proceed by motion, but might have resorted to proceedings in error, in the first instance. But they chose to appear and move to vacate the judgment. This, they might properly do, either on the alleged ground of a want of juris- ■ diction, or alleged irregularity or error, outside of the question of jurisdiction. What was, in fact, the ground of the motion, we are not informed; for, by agreement of parties, no record of the motion was made. In this matter, we are left to conjecture. If the motion was grounded upon irregularity, or error in the judgment alone, aside from the question of jurisdiction, the motion itself would constitute such an appearance as would have the effect to waive the question of jurisdiction. If the motion was based on an alleged want of jurisdiction, it would be no such appearance or waiver; and if the motion had been erroneously determined against the defendants in the judgment, they might have taken their exceptions, and reversed the ruling of the court. But, instead of doing this, while they were in the proper court, at a proper time, and while the whole matter was under the control of that court, they voluntarily consented to the dismissal of the motion, and, by so doing, it seems to us, they voluntarily consented to let the judgment stand against them, and ought not now to be allowed to allege- a want of jurisdiction in the court which rendered it.

Judgment affirmed.

Scott, C.J., and Sutliee, Peck, and Gholson JJ., concurred.  