Ewell v. Jackson

• Decision Date: 03 June 1908
• Citation: 110 S.W. 860,129 Ky. 214
• Parties: EWELL et al. v. JACKSON et al.
• Court: Kentucky Court of Appeals

110 S.W. 860

129 Ky. 214

EWELL et al. v. JACKSON et al.

Court of Appeals of Kentucky.

June 3, 1908

Appeal from Circuit Court, Laurel County.

"To be officially reported."

Action by Jarvis Jackson and others against R. L. Ewell and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Ewell &amp Smith, for appellants.

Henry C. Hazelwood and E. H. Johnson, for appellees.

CARROLL J.

This action was brought to enjoin the collection of an execution issued upon what purported to be a judgment of the Laurel circuit court in the case of Ewell & Smith v. J. C Jackson's Heirs, upon two grounds: First, that the judgment was never signed on the order book by the judge who delivered it; and, second, that the judgment disposed of a material question not presented by the pleadings in the action. H. C. Faulkner, the regular judge of the Laurel circuit court, could not sit in the case in which the judgment was rendered, and D. K. Rawlings was selected as special judge by agreement of parties. Judge Rawlings, after hearing the case, took it under advisement, and in due time returned or had delivered to the clerk a written judgment signed by him. The clerk recorded the judgment, omitting the name of the judge; and the recorded judgment was never signed by Rawlings. The judgment rendered by Rawlings was entered upon the order book of the Laurel circuit court on a day of the regular term of the court, and was recorded with the orders and judgments made and entered by the regular judge in cases pending before him. The orders of the day made by the regular judge, and which included the judgment rendered by Rawlings were signed at the end of the day's business by the regular judge in the usual and customary manner.

Upon this condition of the record, three questions are presented First, is it necessary to the validity of a judgment rendered by a special judge that it should be signed by him on the order book? Second, if he fails to sign the judgment on the order book, can the judgment be signed by the regular judge with the same effect as if it had been signed by the special judge; and, third, if the regular judge could not sit in the case, and for that reason a special judge was selected, can the regular judge sign the judgment or orders made by the special judge? Section 390, Civ. Code Prac., provides: "The judgment must be entered on the order book and specify clearly the relief granted or other determination of the action." Section 378 of the Kentucky Statutes of 1903, relating to the duties of clerks of courts, provides that: "The proceedings of each day shall be drawn up by the clerk from his minutes in a plain legible manner, which after being corrected as ordered by the court and read in an audible voice, shall be signed by the presiding judge." It will thus be seen that under the Code and statute it is indispensable to the validity of a judgment that it shall be entered upon the order book of the court, and signed by the judge who rendered the judgment or his successor in the disposal of the case, or by the regular judge, unless he is disqualified. These two acts must concur. In the absence of either, there is no judgment. A paper signed by a judge, although it contain the entire judgment, and be delivered to the clerk of the court to enter upon the order book, is not a judgment in fact until it has been entered upon the order book of the court and signed by a judge. Courts of record speak only by their records duly entered and signed in the books provided for that purpose. The judgment in an action or proceeding is usually the final termination of the matter in the court in which the case is pending. By it the most valuable rights of the citizens are determined, and it is of the highest importance that it should be preserved in permanent form and be in fact signed by the very person whose authority directed its entry, unless he fails within the meaning of section 977 of the Kentucky Statutes of 1903 to sign it. This statute provides that: "Upon the death of a circuit judge, or when...