Go directly to judgment
On Saturday, the 13th of October 1877, a Chicago newspaper reported on a number of court cases, including a couple that caught the eye of reader Linda Vert when she came across the notice.
The first case, No. 68,821, was “A. Gridley & Son. vs. N.M. Jones and T.P. Barkalow. Confession of Judgment, $287.85.” And, right beneath that, No. 68,822, “Same vs. Wm. H. Vert. Confession of judgment, $955.90. Same attys.”1
Linda knew the case meant William H. Vert was going to end up paying A. Gridley & Son the sum of $955.90… but why? What exactly was a “confession of judgment”? And where would the records be?
Good questions! Particularly since the confession of judgment is a rare beast in individual consumer transactions these days, it’s not something most of us would have come across.
The Black’s Law Dictionary definition of a confession of judgment explains that it’s the “act of a debtor in permitting judgment to be entered against him by his creditor, for a stipulated sum, by a written statement to that effect or by warrant of attorney, without the institution of legal proceedings of any kind.”2
Another says it’s the “act of a debtor in permitting judgment to be entered against him by his creditor, for a stipulated sum, by a written statement to that effect or by warrant of attorney, without the institution of legal proceedings of any kind.”3
And a third contemporary definition is that it’s “a clause within a promissory note, allowing the creditor to, upon nonpayment by the borrower, get a court judgment for the amount owed and in some cases collect from the borrower’s assets, all without giving the borrower advance notice.”4
So… how does this work? And if it’s all to avoid litigation or legal proceedings, why is this still in court?
Now outlawed in most states in consumer transactions, the confession of judgment used to be a common part of a credit deal: the borrower or buyer on credit would sign a piece of paper as part of the original transaction that essentially said: “I owe you a specific amount of money. I have to pay it by a date certain. If I don’t pay it by that date, this paper can be submitted to a court as my confession that I owe you the money and have no defense to your claim for it.”
Once the debtor fell behind, the creditor could then take that confession, file it in court, and get the court to proceed directly to enter judgment against the debtor. The creditor didn’t have to file a lawsuit where he’d have to prove that the debtor owed the money; the debtor didn’t have to be given a chance to defend by saying he didn’t really owe the money. In some states, the debtor didn’t even have to be told the creditor was going to court. All of that was bypassed.
Think of this as the “go directly to jail, do not pass go” card for a business deal.
You may also come across a form of this confession under the name cognovit or cognovit actionem: “A defendant’s written confession of an action brought against him, to which he has no available defense. It is usually upon condition that he shall be allowed a certain time for the payment of the debt or damages, and costs. It is supposed to be given in court, and it impliedly authorizes the plaintiff’s attorney to sign judgment and issue execution.”5 The difference between the two is that the confession of judgment is signed by the debtor to be submitted to the court; the cognovit is usually a document by the debtor authorizing the judgment to be signed by the creditor’s attorney.
In either case, the reason why this still went to court, since the creditor didn’t have to prove his case, was that the creditor still wanted the court to enter judgment against the debtor: the legal order of the court fixing the amount owed, with interest, and usually with court costs and even attorneys’ fees.
And the entry of that document was the legal authority of the court to the creditor to begin to execute on the judgment — that is, start taking the debtor’s assets: his horse or his crops or his land or whatever else he owned. Having the legal judgment entered gave the creditor the right to get the sheriff involved with all those fancy named old writs of execution, like the fieri facias (abbreviated fi. fa. or fifa): “A writ of execution commanding the sheriff to levy and make the amount of a judgment from the goods and chattels of the judgment debtor.” 6 Or the venditioni exponas: “[A] writ of execution, requiring a sale to be made…” 7
So yes, Linda is absolutely right: William Vert was going to have to pay up.
But where would the records be? We sure want them in these cases, because there’s a good chance that one of the papers filed in a confession of judgment case was actually signed by the debtor: likely our ancestor.
The newspaper clipping says the case was filed in Superior Court, and just beneath this list of cases is another list involving a Judge Jameson. In November 1877, John A. Jameson was elected to his third six-year term as a Superior Court Judge in Chicago, Cook County, Illinois.8
That court no longer exists in Chocago, but its records are held by the Archives of the Clerk of the Circuit Court of Cook County. Cases from the Circuit and Superior Courts for the period 1871-1963 are indexed on microfilm, and “(c)ase files may contain cause of action (complaint), defendant’s response, motions and briefs filed; testimony (occasional): verdict (if jury trial); judge’s final order.”9
Go get ’em… these should be interesting records!
- The Court Record, The (Chicago, Ill.) Inter Ocean, 13 Oct 1877, p. 7, col. 2; digital images, Newspapers.com (http://www.newspapers.com : accessed 7 Sep 2014). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 249, “confession of judgment.” ↩
- The Law Dictionary (http://thelawdictionary.org/ : accessed 7 Sep 2014), “What is confession of judgment?” ↩
- Wex, Legal Information Institute, Cornell Law School (http://www.law.cornell.edu/wex : accessed 7 Sep 2014), “confession of judgment.” ↩
- Black, A Dictionary of Law, 218, “cognovit actionem.” ↩
- Black, A Dictionary of Law, 491, “fieri facias.” ↩
- Ibid., “venditioni exponas.” ↩
- “The Election,” Chicago Legal News: A Journal of Legal Intelligence, 10 Nov 1877, vol 10, p. 61; digital images, Google Books (http://books.google.com : accessed 7 Sep 2014). ↩
- “Records and Archives: Archives Holdings,” Clerk of the Circuit Court, Cook County Illinois (http://www.cookcountyclerkofcourt.org : accessed 7 Sep 2014). ↩