Wyman v. Yeomans

Citations

• 84 Ill. 403

Syllabus

<p>1. Alteration—in date of promissory note, material. An alteration in the date of a note and cognovit, so as to make the note fall due one year later, is a material alteration, at least, as to a surety on the note.</p> <p>2. Judgment—by confession in vacation—opening the same for defense. Where a note and cognovit were executed by one as surety, bearing date in 1875, and the date was, without his consent, afterwards, changed to 1876, and the surety notified the payee to sue on the note after it became due according to its original date, and he failed to do so, and a judgment was afterwards entered upon said note and cognovit, in vacation, without notice to such surety, the judgment should be opened and such surety permitted to plead and have a hearing before a jury on the question of whether he is entitled to be discharged by the failure of the payee to bring suit promptly after being notified so to do.</p> <p>8. Practice—setting aside judgment by confession rendered in vacation. The 40th section of the Practice Act, which provides, the court may, in its discretion, before final judgment, set aside any default, and may, during the term, set aside any judgment, upon good and sufficient cause, upon affidavit, etc., has no application to judgments by confession, under a power of attorney or cognovit, rendered in the absence of the defendant.</p> <p>4. Judgment in vacation—courts of law Turne equitable jurisdiction over. Courts of law exercise an equitable jurisdiction over judgments by confession under power of attorney or cognovit, and it is especially necessary to justice that they should exercise that jurisdiction in cases where the judgment is entered up in vacation.</p>