(Laws 1799, Cobb's 1851 Digest, p. 495; Code 1863, §§ 3518, 3519, 3520; Code 1868, §§ 3541, 3542, 3543; Code 1873, §§ 3600, 3601, 3602; Code 1882, §§ 3600, 3601, 3602; Civil Code 1895, §§ 5359, 5360, 5361; Civil Code 1910, §§ 5954, 5955, 5956; Code 1933, §§ 110-601, 110-602, 110-603; Ga. L. 1983, p. 884, § 4-1.)
Law reviews.- For article comparing sections of the Georgia Civil Practice Act (Ch. 11 of this title) with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For comment on Cocke v. Truslow, 91 Ga. App. 645, 86 S.E.2d 686 (1955), see 18 Ga. B.J. 92 (1955).
JUDICIAL DECISIONS
Same treatment as for judgments rendered on verdicts.
- This section recognizes that a judgment obtained by confession is to be entered up as in cases of judgments rendered on verdicts. Williams v. Atwood, 52 Ga. 585 (1874).
Judgment must be regularly entered upon a confession of judgment. Whitley v. Southern Whsle. Corp., 45 Ga. App. 445, 164 S.E. 903 (1932).
Entering up judgment.
- In a case in a justice of the peace court, when an appeal will lie, the appeal can be made from a confession of judgment without any formal entering up of judgment by the justice on the confession. Huff v. Whitner, Manry & Co., 8 Ga. App. 25, 68 S.E. 463 (1910).
Meaning of "confession of judgment".
- "Confession of judgment" has reference to the act of the defendant whereby the defendant admits or confesses the right of the plaintiff to take a judgment against the defendant, and not to the entering up, or rendition of, the judgment itself which is rendered upon the defendant's confession of judgment. Thomas v. Bloodworth, 44 Ga. App. 44, 160 S.E. 709 (1931).
Pendency of an action as a prerequisite.
- Confession of judgment which would authorize an entry of judgment thereon cannot be made until an action is instituted, and such confession of judgment must be made in a suit and after the suit's institution. Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617 (1931).
Confession of judgment is the substitute for a verdict, and no such confession can be made until a suit is filed, and no confession of judgment can be entered unless the cause has been regularly sued out and docketed as in other cases. Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617 (1931).
Before there can be a valid action pending in any court, the court must have jurisdiction of the parties. Thus, this section contemplates the pendency of a valid action, when the jurisdiction of the court is unquestioned, and nothing more, before there may be a confession of judgment by either party as provided by this section, and this would be true whether such party is an individual, a partnership, or a corporation. Wade v. Combined Mut. Cas. Co., 201 Ga. 318, 39 S.E.2d 681 (1946).
Valid ground for setting aside judgment.
- Allegation, in a motion to set aside a judgment rendered on a confession of judgment, that "at the time said confession was entered" the suit had not been docketed as provided in this section, constitutes a ground for setting aside the judgment. Thomas v. Bloodworth, 44 Ga. App. 44, 160 S.E. 709 (1931).
Relationship to common law judgments by confession.
- Courts should construe this section in connection with the common-law principle that a confession of judgment is one made after the action is commenced; and so construing the judgment, hold that no confession of judgment, made before suit is commenced, can be entered in a cause commenced after the confession is made, and that no valid judgment can be rendered upon such confession so made and entered. Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617 (1931); Whitley v. Southern Whsle. Corp., 45 Ga. App. 445, 164 S.E. 903 (1932).
This section has no application to judgments by confession at the common law, which had to be entered after action had been brought and process had been regularly served. Greenfield v. Chronicle Printing Co., 107 Ga. App. 442, 130 S.E.2d 526 (1963).
When entering of judgment not authorized.
- Agreement by a debtor to confess judgment in behalf of the creditor, which was made months prior to the institution of a suit, did not authorize the entering of a judgment of confession in a suit afterwards instituted. Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617 (1931).
Confession itself is not the judgment of the court, but amounts to no more than an admission of indebtedness, and an agreement to take judgment thereon when the judgment can properly be rendered. Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617 (1931); Whitley v. Southern Whsle. Corp., 45 Ga. App. 445, 164 S.E. 903 (1932).
Authority to confess may be given by warrant of attorney executed at the time the debt is created. Greenfield v. Chronicle Printing Co., 107 Ga. App. 442, 130 S.E.2d 526 (1963).
Effect on third persons.
- When a party, upon equitable proceeding filed while the court is in session, obtains by consent a general judgment, such judgment, while good inter partes, cannot affect the rights of third persons. Ainsworth v. Mobile Fruit & Trading Co., 102 Ga. 123, 29 S.E. 142 (1897).
Full faith and credit in foreign state.
- When a resident of this state executed a promissory note, to be enforced in the State of Pennsylvania, by agreeing to a confession of judgment in the event of default, and waiving the right to personal service, such agreement is enforceable and the judgment based thereon is valid and entitled to full faith and credit in this state. Parker v. Fidelity Bank, 151 Ga. App. 733, 261 S.E.2d 465 (1979).
Full faith and credit is given by courts of this state to valid judgments from other states, when such judgments do not contravene Georgia laws. A valid judgment by confession of an attorney in a court is not such a judgment as would be contravened by the provisions of this section. Cocke v. Truslow, 91 Ga. App. 645, 86 S.E.2d 686 (1955). For comment, see 18 Ga. B.J. 92 (1955).
When judgment not contrary to Georgia laws.
- Judgment obtained in a foreign state in an action upon a note which contained a confession of judgment clause, where an attorney appeared for the defendant, and personal service was obtained upon the nonresident defendant in Georgia, is not contrary to the policy or laws of this state. Melnick v. Bank of Highwood, 151 Ga. App. 261, 259 S.E.2d 667 (1979).
Cited in Wade v. Combined Mut. Cas. Co., 201 Ga. 318, 39 S.E.2d 681 (1946).
RESEARCH REFERENCES
Am. Jur. 2d.
- 46 Am. Jur. 2d, Judgments, § 204 et seq.
C.J.S.- 49 C.J.S., Judgments, §§ 170, 173, 174, 175.
ALR.
- Warrant to confess judgment as affected by statute of limitations, 21 A.L.R. 774; 172 A.L.R. 997.
Power of municipality to consent to judgment against itself, 67 A.L.R. 1503.
Validity and effect of cognovit or warrant of attorney to confess judgment in conditional sale contract, 89 A.L.R. 1106.
Correction of mistake in judgment entered under warrant of attorney to confess judgment, 144 A.L.R. 830.
Necessity in action on judgment of sister state confessed under warrant of attorney, of alleging and proving the law of the latter state permitting such judgment, 155 A.L.R. 921.
Necessity that the transcript of a judgment of another state upon a cognovit under warrant of attorney shall include the cognovit and the note containing the alleged warrant of attorney, 162 A.L.R. 685.
Right to enter judgment by confession as affecting suspension of statute of limitations during absence of debtor from state, 172 A.L.R. 997.
What law governs validity of warrant or power of attorney to confess judgment, 19 A.L.R.2d 544.
Payment by obligor on note or other instrument containing warrant of attorney to confess judgment as extending time within which power to confess may be exercised, 35 A.L.R.2d 1452.
Necessity, in order to enter judgment by confession on instrument containing warrant of attorney, that original note or other instrument and original warrant be produced or filed, 68 A.L.R.2d 1156.
Successive judgments by confession on cognovit note or similar instrument, 80 A.L.R.2d 1380.
Warrants of attorney to confess judgment: requirements as to signing, sealing, and attestation, 3 A.L.R.3d 1147.
Constitutionality, construction, application, and effect of statute invalidating powers of attorneys to confess judgment or contracts giving such power, 40 A.L.R.3d 1158.
Modern views of state courts as to whether consent judgment is entitled to res judicata or collateral estoppel effect, 91 A.L.R.3d 1170.