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Exchange Nat. Bank v. Crest Finance Co.

NOVEMBER 12, 1964.

THE EXCHANGE NATIONAL BANK OF CHICAGO, A NATIONAL BANKING ASSOCIATION, PLAINTIFF-APPELLEE,

v.

CREST FINANCE COMPANY, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Order affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

ON REHEARING

This is an appeal from an order of the Circuit Court of Cook County denying a motion by the defendant, Crest Finance Company, Inc., to vacate a judgment by confession entered in favor of the plaintiff and against the defendant on May 24, 1963. A motion to vacate the judgment was filed on May 27, 1963, and the order denying the same was entered on the same day.

The complaint and confession on a judgment note signed by defendant, Crest Finance Company, Inc., and guaranteed by the defendant, Lester A. Brock, were filed on May 24, 1963, and judgment was entered on that day against both defendants in the sum of $60,442.69 and costs. The note, in part, is as follows:

"91 da 15-16-70 (hand written in upper margin)

No. 248210 Chicago, Ill. April 8, 1963 Due Date July 8, 1963 Amount $100,000.00

On Demand, and if no demand is made then 91 days after date for value received the undersigned promise to pay to the order of

The Exchange National Bank of Chicago

One Hundred Thousand & No/100 Dollars with interest at the rate of 6 per cent per annum, and with interest at seven per cent per annum after maturity until paid. . . ."

In addition to the foregoing the note contained a warrant of attorney authorizing a confession of judgment "at any time after maturity." Judgment was confessed on this note prior to 91 days after its date of April 8, 1963. The complaint did not allege any prior demand on the part of the plaintiff. Judgment was entered against the corporation and Lester A. Brock.

On May 27, 1963 the defendant, Crest Finance Company, Inc., filed a motion to set aside the judgment and dismiss the cause on the ground that the judgment was entered by virtue of a supposed demand note attached to the complaint; that the note on its face specifies that the due date is July 8, 1963, and that the note is not a demand note. The motion also asserted that the said judgment was entered by virtue of a purported warrant of attorney to confess judgment, which warrant was void for the reason "that the said note had not (sic) and is not due as per its terms until July 8, 1963."

The plaintiff on May 27, 1963 filed an affidavit signed by one Charles Lyle, Assistant Vice President of the Exchange National Bank of Chicago, in which he stated that attached thereto was a copy of a letter mailed by United States registered mail, postage prepaid, to the defendant, Crest Finance Company, Inc., on the 25th day of April, 1963. That the affiant supervised the mailing of the letter, which made demand upon the defendant, Crest Finance Company, Inc., to pay the note involved in the above entitled cause. That the return receipt was received by the plaintiff bank bearing the signature of the defendant, Crest Finance Company, Inc., a copy of which receipt was attached to the affidavit. That subsequent to the demand the defendant paid $25,000 on account of said note, which sum, together with other sums in the possession of the bank, was applied on account of the note. The affiant further stated that the defendant, Crest Finance Company, Inc., never at any time made any objection to said demand. A copy of the letter making the demand for immediate payment was dated April 25, 1963, and the return receipt is dated April 26, 1963.

The court denied the motion of the defendant to vacate the judgment on May 27, 1963.

It is the contention of the defendant that (1) the note was not payable on demand and the warrant of attorney authorizing the confession of judgment after maturity did not authorize the confession of judgment prior to July 8, 1963, and (2) that the affidavit of Charles Lyle, filed in opposition ...


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