third, that the several judgments, and each of them, so confessed in favor of said bank, or a part thereof, were without consideration, and a fraud upon the plaintiff and the general creditors of said Seitz and Seitz & Craddick; fourth, that the inclusion in each of said warrants of attorney and each of said several judgments, of attorneys' fees, renders each of said judgments void; fifth, that each of said judgments is for a larger sum than was due upon the note upon which it was confessed, and was unauthorized by the warrant of attorney in said note; sixth, that said judgments, and each of them, are for a larger amount than was authorized by the warrant of attorney under which they were severally confessed; seventh, that said judgments, and each of them, are void for want of sufficient proof of the execution of the warrant of attorney upon which they were confessed; eighth, that the execution of the said several promissory notes and warrants of attorney upon which said judgments were confessed was procured by the false and fraudulent representations of said plaintiff, by its cashier, to the maker of said notes; ninth, that said judgments, and each of them, were entered by the court, as appears by the record; tenth, that there is no sufficient record of either of said judgments appearing in this court, nor does authority appear of record for entering said judgments, or either of them; eleventh, that each of said executions was issued before the judgment which purports to have been issued was written up; twelfth, that the two notes of $500 each, upon which judgment was confessed for $1126, and signed in the firm name of Seitz & Craddick, were signed by A. C. Seitz without the knowledge or consent of Craddick, and void; that the two judgments for $3800 each, confessed, respectively, upon the two notes for $3500 each, with warrant of attorney attached, authorizing the confession for the amount that may ap pear to be due, with reasonable attorneys' fees and costs, were signed in the firm name of Seitz & Craddick by A. C.

Seitz, without the knowledge or consent of Craddick, and that each of said judgments is for a larger amount than due upon the notes, and void.

PALMER, SHUTT, DRENNAN & LESTER, for appellant:

The rule that none but parties to the judgment are permitted to interfere, admits of exceptions. If a party confess judgment for too much, or not in conformity to the statute, it may be set aside by a judgment creditor. 2 Freeman on Judgments, (4th ed.) sec. 557.

A judgment by confession without action, when the statute has not been pursued, though conceded not to be absolutely void, may be avoided in various ways by persons who are not parties. Bannon v. People, 1 Ill. App. 499.

If these judgments are void for any reason, they may be questioned by anybody in whose way they get or with whose interests they conflict. Gardner v. Bunn, 132 Ill. 403; Chase v. Duna, 44 id. 262.

If the judgment is entered in vacation, all the papers are a part of the record. Waterman v. Caton, 55 Ill. 94; Stein v. Good, 115 id. 93; 2 Starr & Curtis' Stat. sec. 65, chap. 110, p. 1828

The requirements of the practice, under the statute, are quite fully set forth in Gardner v. Bunn, 132 Ill. 407.

There is no note or power of attorney to be found in the record, to authorize the action of the clerk. This is the most material part of the description, and a variance is fatal. Reitz v. Trustees, 3 Ill. App. 448; Moon v. Sayre, 4 id. 248; Hicks v. Silliman, 93 Ill. 256; Gavin v. Chicago, 97 id. 66; Railroad Co. v. Wieczorek, 151 id. 579.

E. A. HUMPHREYS, and J. C. MCBRIDE, for appellee: Errors of law will not be considered on a motion to set aside a judgment. There must be some equitable defense. Mumford v. Tolman, 157 Ill. 258; Farwell v. Houston, 151 id. 239; Thomas v. Mueller, 106 id. 42; Martin v. Judd, 60 id. 83; Freeman on Judgments, (2d. ed.) sec. 516; Adam v. Arnold, 86 Ill. 185.

The motion made by appellant in the court below is substituted for a proceeding in chancery, and relief will be granted under it only upon equitable doctrine. well v. Houston, supra.

Far

Where judgment confessed in vacation includes a reasonable attorney's fee, to that extent it should be modified. Campbell v. Goddard, 117 Ill. 252, and 17 Ill. App. 382; Boynton v. Rennick, 46 Ill. 282; Zuckermann v. Solomon, 73 id. 130; Frye v. Jones, 78 id. 631; Inglehart v. Morris, 34 id. 501.

Power to confess judgment should not be so strictly construed as to defeat the evident intention of the parties. Holmes v. Parker, 125 Ill. 478.

The law is so averse to permitting litigants to be defeated in their just dues, that it will not allow slight discrepancies or irregularities to vitiate a judgment. Osgood v. Blackmore, 59 Ill. 266.

When a judgment is confessed before the clerk in vacation, all of the papers filed,-declaration, warrant of attorney, proof of execution, judgment and plea of confession,-constitute the record. Durham v. Brown, 24 Ill. 94; Waterman v. Caton, 55 id. 94.

Evidence dehors the record will never be received for the purpose of impeaching a judgment collaterally. Barnett v. Wolf, 70 Ill. 81; 1 Black on Judgments, sec. 278; Harris v. Lester, 80 Ill. 314.

The clerk having once acquired jurisdiction, irregularities or errors may render the judgment unjust or erroneous, but not void, and the injustice or error is to be corrected by the court. Gardner v. Bunn, 132 Ill. 412.

But the true rule appears to be, that if there has been an attempt to fulfill all the requirements of the law, the judgment is at most only voidable, although the execution of such attempt be informal or defective. 1 Black on Judgments, sec. 67.

It is said in Little v. Dyer, 138 Ill. 278, that the authority to enter judgment by confession is just as broadly given to the clerk in vacation as to the court acting in

term time. And surely no court would have hesitated to enter up judgments on these affidavits.

Where judgment is equitable and just it will not be set aside because the proof of the execution of the power of attorney is defective. Hempstead v. Humphrey, 38 Ill. 97; Stuhl v. Skiff, 44 id. 133; Rising v. Brainard, 36 id. 79.

Mr. JUSTICE WILKIN delivered the opinion of the court: A cross-motion to strike the original motion from the files was duly entered and overruled. It was insisted by the bank in the Appellate Court that the circuit court erred in so overruling the cross-motion, and that insistence is renewed here. The question is thus raised at the threshold of the case, whether appellants, as judgment creditors of the defendants in the confessed judgments, can, by motion upon any of the alleged grounds, attack such judgments.

Black, in his work, on Judgments, (vol. 1, sec. 293,) speaking of the right of parties to attack judgments for fraud, says: "Hence a judgment confessed without any consideration, and with fraudulent intent, may be questioned by other judgment and execution creditors of the defendant, and as to them the judgment and execution thereon will be vacated and set aside. *** But inasmuch as the law always favors the stability and finality of judgments, it is held that a stranger who thus seeks to impeach a judgment as a fraud upon his rights must show the fraud by clear and satisfactory proof." And in the next section he further says: "It is no ground for the intervention of third persons that fraud has been practiced upon the debtor,-it must be fraud practiced by the debtor, either alone, or, as is more commonly the case, in collusion with the plaintiff in the judgment." So Freeman on Judgments, (vol. 2, sec. 558a,) after stating that the effect of a judgment by confession is not substantially different from the effect of one entered in a contested litigation, uses this language: "Strangers to the

judgment may impeach it on the same grounds as other judgments are impeachable upon, and may therefore show that it was given and accepted for the purpose of hindering, delaying or defrauding creditors or forcing them to make a compromise, or may show that its date or recitals are not true, but cannot impeach it for fraud practiced on the debtor in obtaining his confession, where there was no collusion between him and his creditor."

It is only necessary to call attention to the twelve reasons above set forth and incorporated in the motions why the judgments confessed in vacation should be vacated or modified, to show that, within the rule announced by these authors, appellant had no standing in the circuit court. It was not fraudulent for the debtor to confess judgment in favor of a creditor, though he was at the time insolvent. Hier v. Kaufman, 134 Ill. 215.

Neither is it pretended that the third allegation, to the effect that there was no consideration for the confessed judgments, is supported by the evidence. Both courts below have found to the contrary. The only ground upon which either court modified those judg ments was, that attorneys' fees were improperly included in them, and this not because it was illegal to provide in the notes for such fees or because they could not properly have been included in the confessions if they had been entered in term time, but solely because the clerk had no power to determine the reasonableness of the fees. It is not even claimed that the amounts allowed are unreasonable or inequitable. All that can be said is that the judgments are too large, and that under the rule announced in Campbell v. Goddard, 117 Ill. 251, the defendants to the judgments would have had the right to have them modified. That the bank caused the amounts included as attorneys' fees to be added for the purpose of hindering, delaying or defrauding other creditors is not claimed, much less that defendants, or either of them, in any way colluded with it to accomplish such purpose.