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Irmco Hotels Corp. v. Solomon

MARCH 17, 1975.

IRMCO HOTELS CORP., PLAINTIFF-APPELLEE,

v.

WILEY SOLOMON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH B. HERMES, Judge, presiding.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

• 1 This is an appeal from an order denying defendant's motion pursuant to section 72 of the Civil Practice Act to vacate a judgment by confession. No appearance or brief has been filed in this court by the plaintiff. We need not, therefore, consider this cause on the merits. We choose, however, to do so. Moore v. Peters, 118 Ill. App.2d 285, 254 N.E.2d 821.

The defendant entered into a residential lease with Investors Realty & Management Corp. for a term commencing October 1, 1971, and ending September 30, 1973, with respect to an apartment at 5421 South Ellis Avenue, Chicago. The lease contains the following confession of judgment clause:

"27. Lessee does hereby irrevocably constitute any attorney of any Court of Record in any State or of the United States, attorney for him and in his name, from time to time, to waive the issuance of process and service thereof, to waive trial by jury, to confess judgment in favor of Lessor, his heirs, executors, administrators or assigns, and against Lessee, for the amount of rent which may be in default by virtue of the terms hereof, together with the costs of such proceedings, and a reasonable sum, but at no time less than Ten Dollars, for plaintiff's attorney's fees in or about the entry of said judgment, and for said purposes to file in said cause his cognovit thereof, and to make an agreement in said cognovit, or elsewhere, waiving and releasing all errors which may intervene in any such proceeding, and waiving and releasing all right of appeal and right to writ of error, and consenting to an immediate execution upon such judgment. If there be more than one Lessee this warrant of attorney is given jointly and severally and shall authorize the entry of appearance of, waiver of issuance of process and trial by jury by and confession of judgment against any one or more of such Lessees, and shall authorize the performance of every other act in the name of and on behalf of any one or more of such Lessees, and Lessee hereby confirms all that said attorney may lawfully do by virtue hereof."

On July 17, 1972, a judgment by confession was entered against Mr. Solomon for $754.50 for unpaid rent and attorney's fees.

On September 5, 1972, Mr. Solomon was served with an alias summons to confirm the judgment and on September 11, 1972, he filed his appearance in response to the summons. A subsequent motion was made pursuant to section 72, Illinois Civil Practice Act, to vacate the judgment by confession. The motion was heard and denied and this appeal followed.

The statute in controversy provides:

"(3) Any person for a debt bona fide due may confess judgment by himself or attorney duly authorized, without process. The application to confess judgment shall be made in the county in which the note or obligation was executed or in the county in which one or more of the defendants reside or in any county in which is located any property, real or personal, owned by any one or more of the defendants. A judgment entered by an court in any county other than those herein specified has no force or validity, anything in the power to confess to the contrary notwithstanding." Ill. Rev. Stat. 1971, ch. 110, par. 50(3).

The defendant raises two related arguments challenging the constitutionality of the Illinois statute regarding confession of judgment (Ill. Rev. Stat. 1971, ch. 110, par. 50(3)): (1) that it allows a deprivation of property without due process of law because of the lack of any provision for notice and hearing prior to rendition of judgment; and (2) that the execution of a document containing a warrant of attorney with power to confess does not contain a prima facie waiver of the right to notice and hearing prior to judgment.

Both arguments were urged before the Illinois Supreme Court in a case in which the confession of judgment statute was found not to be unconstitutional per se. (First National Bank v. Keisman, 47 Ill.2d 364, 265 N.E.2d 662.) The court found that the parties were knowledgeable businessmen and that the record did not reveal any defect in the defendants' waiver of their right to process before judgment. The defendant here is, in essence, urging us to reconsider these arguments in light of subsequent cases.

The contractual provisions by which the plaintiff is released from the the duty to serve process on the defendant are couched in such terms as to effectuate a waiver of the defendant's right to notice and a hearing. That the statute allows such a release is the basis for the attack on its constitutionality. The defendant concedes that constitutional rights may be waived. That these rights may be waived by contract is axiomatic.

The defendant argues that recent cases involving prejudgment garnishment of wages and nonwage property militate against continued enforcement of section 50(3) of the Civil Practice Act. He cites Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L.Ed.2d 349, 89 S.Ct. 1820, and Scott v. Danaher (N.D. Ill. 1972), 343 F. Supp. 1272, in support of this contention. Both cases involved statutes authorizing the "freezing" of the defendant's property without notice or hearing, prior to a disposition of the merits of the plaintiff's claim. The defendants were deprived of the use of the property until such time as a hearing was held. Both courts determined that such a "taking" violated the fourteenth amendment to the United States Constitution. The defendant here asks us to apply the reasoning in those cases to the statute on confession of judgment.

The Sniadach case did not involve a confession of judgment. The Scott case did. Although the court in Scott noted the absence of a requirement in Illinois' confession statute for notice and hearing prior to judgment, it directed its decision toward the lack of a notice requirement in the garnishment statute, when the garnishment statute is invoked to satisfy a judgment by confession.

• 2 We find nothing in the cited cases which compels a departure from the Illinois Supreme Court's previous pronouncement on the defendant's first argument. Recognizing the defendant's right to notice and a hearing prior to being deprived of any significant property interest (including a money judgment against him) and the fact that he was free to contract away that right, we ...


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