Coe v. Erb
| Decision Date | 13 December 1898 |
| Citation | 59 Ohio St. 259,52 N.E. 640 |
| Parties | COE v. ERB et al. |
| Court | Ohio Supreme Court |
Error to circuit court, Franklin county.
The defendant in error D. S. Erb commenced an action in the court of common pleas against one Hendrickson and others, including the plaintiff in error, Irvin T. Coe. His petition set forth that on the nineteenth of March, 1894, he recovered a judgment against Hendrickson in that court in an action which was pending on and before the first day of the January term 1894, for $311.29 and costs, which is wholly unpaid and unsatisfied; that from December 31, 1893, and prior to the first day of the January, 1894, term of the court, and from before, at, and continuously after the said first day of said term, until March 19, 1894, the defendant Hendrickson was the owner in fee simple of lots 21 and 22 in Dennison Place addition to the city of Columbus, on which the judgment from the first day of the January, 1894, term of court became a lien, and now is a lien; that, since the rendition of the judgment, Hendrickson has not had, nor has he now, any real or personal property whatever, and that on or about March 17 1894, he conveyed said lots to the defendant Irvin T. Coe who now holds the legal title. Other defendants claim an interest in the property. The plaintiff asked that defendants set up any claim of title they have, or be forever barred that the lands be sold, and plaintiff's judgment and all costs be paid in full from the proceeds. Coe answered denying that the judgment was a lien as of the first day of the January term, 1894, or that it was such lien on the nineteenth of March, 1894, and alleging that the property was conveyed to him by Hendrickson, for a fair and valuable consideration, March 17, 1894, at which time he took possession. The action referred to was upon an account for goods sold and delivered. It was pending at the January term, 1894, but the pendency thereof was wholly unknown to this defendant until long after the purchase and conveyance of the land. At to time during the term, which commenced on the ___ day of January, 1894, and ended on the thirty-first day of March, 1894, was there spread upon the journals of the court any judgment of finding of the court in respect to the case, nor was there any entry filed in court; and defendant had no notice or knowledge whatever, until after the purchase and conveyance, of the rendition of the judgment. On or about the fourth day of April, 1894, a journal entry was prepared by counsel for plaintiff, setting forth a finding and judgment in said suit, and the same was then entered upon the journal of the court as of the twenty-ninth day of March, 1894, all of which facts were wholly unknown and unsuspected by the defendant until long after said term; and said judgment, so entered as aforesaid, is the judgment set up in plaintiff's petition. A demurrer to this answer was sustained. The court thereupon found the issues for the plaintiff, and that, by reason of the judgment pleaded in the petition, he has a valid lien upon the real estate for the amount of his judgment and costs, and ordered the land sold to satisfy the same. On error the circuit court affirmed this judgment, and to reverse both judgments this proceeding in error is brought.
1. In order to create a judgment lien upon the lands of the judgment debtor, as of the first day of the term at which a judgment against such debtor is rendered, under favor of section 5375, Rev. St., the judgment must not only be pronounced during the term, but an entry of such judgment must be made on the journal during the term.
2. An entry of judgment on the journal, made in the case by the clerk, by procurement of the counsel for the plaintiff, after the adjournment of the term and in vacation, purporting to have been made at a date during the term, will not, as against the rights of a bona fide purchaser of such lands during the term, have the effect of creating a lien on the lands of the judgment debtor as of the first day of the term although a judgment was in fact pronounced during the term.
3. In an action brought by such judgment creditor against the purchaser to subject the lands so purchased to the payment of the judgment, the purchaser may contest, by pleading and proof, the lien sought to be enforced against the land.
J. S. Friesner and G. F. Castle, for plaintiff in error.
Thos. E. Steele, for defendants in error.
SPEAR, C. J. (after stating the facts as above).
The question argued by counsel for plaintiff in error, as arising upon the record, is whether or not, in an action commenced prior to the beginning of the term, upon a claim for money, a judgment announced, though not placed upon the journal during the term, but entered nunc pro tunc after the term, creates a lien upon the real estate of the judgment debtor, as against a bona fide purchaser, who buys during the term, but before the judgment is announced, without knowledge of the pendency of the action. The question thus made involves a consideration of the statutes which deal with the essentials of a judgment, and with its effect upon the real property of the judgment debtor. Section 5374, Rev. St., provides that lands and tenements, and goods and chattels not exempt, ‘shall be subject to the payment of debts and shall be liable to be taken on execution and sold.’ Section 5375 provides that ‘such lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered; but judgments by confession and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered.’ It has sometimes been contended, and the rationale of the judgments of the courts below in this case appears to imply, that the actual entry of the judgment upon the journal is not essential to the creation of a lien. This implication, it seems to us, is not warranted when all the sections bearing upon the subject are regarded and their evident purpose considered. It is true that the two words ‘rendered’ and ‘entered,’ in their strict use, bear a clear difference in meaning and intent. Giving to these words such signification, a judgment may be said to be rendered by a declaration from the bench; but to enter it requires the act of the clerk in writing it upon the journal. It is true, also, that for some purposes a judgment may be regarded as rendered so soon as it is pronounced. But, having in mind that we are dealing with the creation of liens upon real estate, the question is, in what sense is the word ‘rendered’ used in the statute? Section 5331 provides that ‘all judgments * * * shall be entered on the journals of the court.’ Why this requirement if the judgment is to be regarded as in full force and effect for all purposes by the mere announcement of it from the bench? It would not be questioned, we suppose, that execution may not properly issue on a judgment until it has been duly entered. From this it would follow that goods and chattels even cannot be seized in execution upon the mere announcement of judgment by the court, and to assume that lands and tenements may be burdened by a lien, good for every purpose except sale, by judicial acts of less formality than are necessary to subject goods and chattels to the payment of the debt, would be an anomaly in the law, in view of the fact that, when execution issues, it must be first satisfied by levy and sale of goods and chattels, if any are found not exempt, and the money can be made out of lands and tenements only for want of goods and chattels. The requirement that all judgments must be entered on the journal carries the implication that, until that is done, the judgment is inchoate only; it is incomplete. Though possessing the character of potentiality, it lacks the character of actuality, and hence is without probative force. Recurring again to section 5375, defining what lands may be bound, and when, we find the expression ‘within the county where the judgment is entered.’ Entered when? The words used are in the present tense. It is with what must be done then-with the action which must be had at the term in order to effect a lien-that the section is dealing. What more natural inference than that the phrase quoted means entered at the term? Giving, then, to section 5331 proper effect, and to the phrase respecting the entry of judgment, in section 5375, its proper signification, and its employment in the statute its proper purpose, we conclude that that section requires that both conditions be satisfied, and that, in order to an effective judgment,-one on which execution may issue, as contemplated by section 5374, and which will create a lien upon real estate, as contemplated by section 5375,-it must be entered on the journal as well as pronounced by the court; in other words, that the judgment is not ‘rendered,’ within the meaning of the last-cited section, until it is entered on the journal.
This conclusion is strengthened by a consideration of the purpose of our recording acts. These acts rest upon a recognition of the policy that there should somewhere be found a record which will disclose the state of the title of all lands within the county. For conveyances, mortgages, leases, etc resort is had to the office of the county recorder; for tax liens to the tax duplicates; for judgment liens to the records of the courts. The entry of the judgment of the court of common pleas, in connection with the docket entries, constitutes, prior to the making up of the final record, a record which shall be notice to the world of the lien of the judgment upon the debtor's lands; and, when so entered,...
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