That any negotiable instrument, or other written contract to pay money, which contains any provision or stipulation giving to any person any power of attorney, or authority as attorney, for the maker, or any indorser [endorser], or assignor, or other person liable thereon, and in the name of such maker, indorser [endorser], assignor, or other obligor to appear in any court, whether of record or inferior, or to waive the issuance or personal service of process in any action to enforce payment of the money, or any part claimed to be due thereon, or which contains any provision or stipulation authorizing or purporting to authorize an attorney, agent or other representative, be he designated howsoever, to confess judgment on such instrument for a sum of money when such sum is to be ascertained, or such judgment is to be rendered or entered otherwise than by action of court upon a hearing after personal service upon the debtor, whether with or without attorney's fee, or which contains any provision or stipulation authorizing or purporting to authorize any such attorney, agent, or representative to release errors, or the right of appeal from any judgment thereon, or consenting to the issuance of execution on such judgment, is hereby designated, defined and declared to be a cognovit note. Any person, natural or corporate, who directly or indirectly shall procure another, or others, to execute as maker, or to indorse [endorse], or assign such cognovit note, or whoever being the payee, indorsee [endorsee] or assignee thereof shall accept and retain in his possession any such instrument, or whoever shall conspire or confederate with another, or others, for the purpose of procuring the execution, indorsement [endorsement] or assignment of any such instrument, or whoever shall attempt to recover upon or enforce within this state any judgment obtained in any other state or foreign country based upon any such instrument, shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than fifty dollars ($50.00), and not exceeding five hundred dollars ($500.00), to which may be added imprisonment for not less than thirty (30) days.
History: Laws 1933, ch. 48, § 1; 1941 Comp., § 19-918; 1953 Comp., § 21-9-18.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Cross references. — For confessed judgment prohibited in retail installment sales, see 56-1-5 NMSA 1978.
Construed in pari materia. — Provisions of 39-1-16 NMSA 1978 and this section must be construed together to arrive at the true intent of the legislature. Ritchey v. Gerard, 1944-NMSC-053, 48 N.M. 452, 152 P.2d 394.
Provisions not to be offensive to full faith and credit. — Sections 39-1-16 to 39-1-18 NMSA 1978 may not be construed or administered in a manner offensive to U.S. Const., art. IV, § 1, providing full faith and credit shall be given in each state to the judicial proceedings of every other state. Mountain States Fixture Co. v. Daskalos, 1956-NMSC-109, 61 N.M. 491, 303 P.2d 698.
Procedure authorized in note gave Colorado court jurisdiction. — The procedure authorized under cognovit provisions contained in a promissory note executed in this state and payable in Colorado, in connection with a contract made and to be performed in Colorado, is sufficient to give the Colorado court jurisdiction over the defendants in an action upon the promissory note. Mountain States Fixture Co. v. Daskalos, 1956-NMSC-109, 61 N.M. 491, 303 P.2d 698.
Even though portions of contract illegal. — Contracting parties may agree to be bound by the laws of the state of the residence of one of them where the contract was to be performed, although some portion of their agreement is illegal where executed and under the law of the forum where suit is brought. Mountain States Fixture Co. v. Daskalos, 1956-NMSC-109, 61 N.M. 491, 303 P.2d 698.
Procurement, etc., of cognovit note deemed misdemeanor. — Any person who procures the execution, endorsement or assignment of a cognovit note, or who accepts and retains such instrument as payee, endorsee or assignee, or whoever attempts to enforce a foreign judgment based upon any such instrument shall be deemed guilty of a misdemeanor and penalized upon conviction. Mountain States Fixture Co. v. Daskalos, 1956-NMSC-109, 61 N.M. 491, 303 P.2d 698.
Waiver of defenses in chattel paper was not in violation of the prohibition against cognovit contracts and notes as set forth in 39-1-16 NMSA 1978 and this section. GECC v. Tidenberg, 1967-NMSC-126, 78 N.M. 59, 428 P.2d 33.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 46 Am. Jur. 2d Judgments § 234 et seq.
Successive judgments by confession on cognovit note or similar instrument, 80 A.L.R.2d 1380.
49 C.J.S. Judgments §§ 138, 139.