Clark v. Duke

• Decision Date: 10 May 1882
• Court: Mississippi Supreme Court
• Parties: MARGARET E. CLARK et al. v. HENRY DUKE et al

59 Miss. 575

MARGARET E. CLARK et al. v. HENRY DUKE et al

Supreme Court of Mississippi

May 10, 1882

Appeal from the Circuit Court of Lee County Hon. J. A. Green, Judge did not preside at the trial of this case, but W. L. Clayton acted as judge pro hac vice.

After the reversal of the judgment in favor of the defendants in ejectment, the widow and heirs of Duncan Clark, upon their joint plea of "not guilty" (58 Miss. 465), the widow moved for leave to substitute the plea that she never had possession; but, notwithstanding evidence that her joinder in the former plea was unauthorized and that the latter plea was true, the court refused her leave to so change her defence. At the trial which followed, upon the evidence stated in the opinion, the verdict was for the plaintiffs.

Judgment affirmed.

E. M Watson, for the appellants, argued orally and in writing.

1. Leave should have been given Mrs. Clark to plead the truth upon her showing that the plea of "not guilty" was filed without authority from her. The appellees had suffered no injury by the mistake. It is intolerable that she should be held in a litigation where she has no interest as a hostage for costs. Filing the new plea was an amendment which should have been allowed. Shropshire v. Probate Judge, 4 How 142.

2. The lien of a judgment commences from its entry on the minutes. Burney v. Boyett, 1 How. 39; Smith v. Ship, 1 How. 234. Altering the word "enter" into "render" in the statute does not change the rule. Reed v. Haviland, 38 Miss. 323; Freeman on Judgments, §§ 344, 369. When the judgment is entered, the lien does not date back to the time of its announcement. Pearson v. Darrington, 21 Ala. 169; Freeman on Judgments, §§ 344, 369. If the lien can relate back a minute, it may for a year. A court speaks only through its minutes. Until entry a judgment will not support an execution. What becomes of the policy of the registry law if a recorded deed can be defeated by an unentered judgment? If an entry is essential as proof of the judgment's existence, the judgment cannot be shown before the entry. Notes on the judge's docket prove nothing; for, if the clerk had not made the entry, a judgment at a subsequent term would not have related back.

3. That part of the opinion upon the former appeal, Duke v. Clark, 58 Miss. 465, which holds that the assignee is unaffected by notice to his assignor, the judgment creditor, before rendition of the judgment, proceeds upon a misconception of the subject-matter of such an assignment. Mary Anderson, the judgment creditor, had notice of the unrecorded deeds before rendition of her judgment, which was therefore not a lien on the land conveyed. The subject-matter of Duke's contract with her was this judgment. Their contract as to this subject-matter was, that she parted with the title which he acquired to it, The judgment was not altered by the changed relations of the parties. That was impossible. The assignment or change of ownership could not alter the subject-matter and add to it a lien any more than a sale of land can raise upon it a hill or add beauty to its valleys.

Houston & Reynolds, for the appellees.

1. Duncan Clark's widow is a necessary party, and her application was properly refused, because unseasonable and because it presented an immaterial issue.

2. In the absence of proof, the law presumes that the judgment was rendered at the earliest possible moment of the day of its date. Edwards v. Reginam, 9 Exch. 628; Bigelow v. Willson, 1 Pick. 485. A judgment is a judicial act, its entry on the record is merely ministerial. A judgment is not what is entered, but what is ordered and considered. Freeman on Judgments, § 38, and authorities cited; Massey v. Johnson, 12 East, 67, 74; Walrod v. Shuler, 2 N.Y. 134. In considering this question, it is needless for us to discuss whether a judgment rendered, but never entered, is operative, or the effect of a "nunc pro tunc" judgment. The case which is presented is the rendition of a judgment and its entry upon the minutes on the same day in which it is proved to have been rendered. Such a judgment becomes operative from the time of its rendition when this is shown by testimony; and, if there is no testimony, it becomes operative by a legal fiction from the first moment of the day of its rendition. Since the Code of 1857, and for some time prior thereto, judgments are a lien from the date of their rendition. Under the Act of 1822, they are a lien from the time of entering such judgments. Burney v. Boyett, 1 How. 39; Reed v. Haviland, 38 Miss. 323.

3. The fallacy of the third argument for the appellants consists in the assumption that the judgment without a lien was the subject-matter of the transfer. The subject-matter was a judgment with a lien; but there was a secret equity in favor of Clark which destroyed it as to him because of the notice to Mary Anderson. The purchaser without notice took freed of this equity. No well-considered case can be found in conflict with the opinion of this court on this question. To the authorities cited in the former opinion ...