Ataka America, Inc. v. Washington West Trade Corp.

[421]

Opinion

KINGSLEY, Acting P. J.

Plaintiff, Ataka America, Inc. (Ataka), appeals from an order vacating a judgment entered pursuant to a confession of judgment; defendant, Washington West Coast Trade Corporation (Trade), has cross-appealed from portions of that order. We modify the order and affirm it as modified.

As the result of a complicated series of transactions, the details of which are not material to the issues herein involved, Trade has become indebted to Ataka for clothing purchased by Trade. In July of 1973, Trade was seriously in default in its payments to Ataka. A series of conferences followed, resulting in the execution on July 12, 1973, by Trade, and by one of its officers in his individual capacity, of a confession of judgment, containing, inter alia, a schedule of payments to be made by Trade.

1

On November 28, 1973, Trade being in default under the payment schedule, Ataka filed the confession; judgment thereon was entered by the clerk on November 30, 1973. On May 29, 1974, Trade filed its motion to vacate the judgment so entered. After the filing of several declarations by the parties, the trial court, on June 27, 1974, granted that motion.

The parties have argued a number of issues, only two of which are material in the light of our holding that the confession of judgment executed on behalf of Trade was void for failure to comply with the requirements of section 1133 of the Code of Civil Procedure.

Section 1133 reads as follows: “A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect:

“1. It must authorize the entry of judgment for a specified sum;

“2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed therefor is justly due, or to become due;

“3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the

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