Hoffman v. Shuey

• Decision Date: 10 February 1928
• Citation: 223 Ky. 70
• Parties: Hoffman v. Shuey.
• Court: United States State Supreme Court — District of Kentucky

Page 70

223 Ky. 70

Hoffman v. Shuey.

Court of Appeals of Kentucky.

Decided February 10, 1928.

1. Courts. — Under Civil Code of Practice, sec. 285, providing that "an injunction to stay proceedings on a judgment shall not be granted, in an action brought by the party seeking the injunction, in any other court than that in which the judgment was rendered," if judgment of quarterly court is void, its collection may be enjoined by circuit court.

2. Common Law. — An act of the court cannot prejudice a litigant.

3. Judgment. — Where records of quarterly court showed that it rendered judgment, but judge failed to sign it, September 5, 1917, but present judge of quarterly court signed judgment and directed that it be treated and considered for all purposes, as between parties, as having been signed on September 5, 1917, it became, after it was signed, a valid judgment effective from date that it was rendered, and not date that it was signed, and all acts, steps, and processes taken, done, and issued under and in effort to enforce it were likewise validated; no rights of third parties having intervened.

4. Judges. — Where judge of court manifests but leaves unfinished an official act, his successor may complete it.

5. Judgment. — Except as to rights of third parties, a "judgment nunc pro tunc" is retrospective, and has same force and effect to all intents and purposes as if it had been entered at time when judgment was originally rendered, and it aids and cures proceedings which otherwise would be defective and irregular for want of proper entry of judgment to sustain them.

6. Judgment. — Evidence to justify entry of judgment nunc pro tunc must be record evidence; that is, some entry, note, or memorandum from records or quasi records of court which shows, in itself, without aid of parol evidence, that alleged judgment was rendered.

7. Judgment. — Where judgment was rendered in quarterly court in 1917, but judge did not sign same, and party obtaining judgment had execution issued and took other steps under judgment, circuit court had no jurisdiction, under Civil Code of Practice, sec. 285, to set aside and cancel executions and other steps taken, where present judge of quarterly court signed judgment after suit to cancel was commenced, since judgment became valid and effective from date it was rendered.

8. Judgment. — A valid judgment cannot be attacked collaterally though a void judgment can.

Appeal from Campbell Circuit Court.

OSCAR H. FORSTER for appellant.

ALBERT R. HOFFMAN for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The appellee, Judson A. Shuey, sued to obtain the cancellation of a sale that had been made of certain property of his in the city of Dayton, Campbell county, Ky., at which sale the appellant, Hoffman, became the purchaser. Shuey was successful, and Hoffman has appealed. A short time prior to September, 1917, Hoffman sued Shuey in the Campbell quarterly court, and it appears that on September 5, 1917, there was written on the records of the Campbell quarterly court, in the form of a judgment, a recital that Hoffman recover of Shuey the $100 so asserted. It seems to be agreed that this writing was in proper form and that, had it been signed then by the judge, it would unquestionably have been a valid judgment against Shuey for $100, but it never was in fact signed by the judge of that court, then or at any time thereafter by any successor of his up to the 18th of November, 1925, when this action was filed. During the pendency of this action, and on December 30, 1925, upon motion and notice, and after hearing, the same was signed by the present judge of the Campbell quarterly court, as will appear from this order then made by the Campbell quarterly court:

"Came plaintiff, Charles Hoffman, and moves the court by motion, which motion is in words and figures as follows: Plaintiff, Charles Hoffman, moves the court to sign the judgment rendered herein on September 5, 1917, which judgment is recorded on page 473 of the Order Book of this court. Plaintiff files copies of notices of hearing of said motion served upon defendant.

"December 28th, came Judson Shuey, defendant herein and objected and excepted to said motion, and said motion was set for hearing December 30, 1925. December 30th, came parties, plaintiff by counsel and defendant in person, and the court being fully advised and it appearing that the judgment above mentioned was rendered September 5, 1917, and entered in full on page 473 of the Order Book of this court, but by oversight or inadvertence the then judge of this court failed to sign said judgment entered as aforesaid, it is now ordered that said judgment be and the same is hereby signed and treated and considered for all purposes as having been signed as of September 5, 1917, to all of which the defendant objects and excepts.

                                "(Signed) William C. Buten, Judge."
                

In the meantime, however, Hoffman had not been idle, for in 1918 he had an execution issued on this supposed judgment by the quarterly court, and that execution was returned "no property found." Thereafter, Hoffman procured a transcript of this execution and return, and filed them in the office of the clerk of the circuit court of Campbell county, as is authorized by section 723, Civil Code, and such transcript was recorded in the Transcript Book of the circuit court at page 361. Thereafter, on May 28, 1921, Hoffman caused to be issued upon such transcript in the circuit court an execution, known in this record as No. 917, and caused same to be levied upon certain real estate in Dayton, belonging to Shuey, upon which there was already an incumbrance. A sale was had under a venditioni exponas issued after the levy of this circuit court execution, and Hoffman became the purchaser, and Hoffman claims that by virtue of that purchase and section 1709, Ky. Stats., he acquired a lien upon this property of Shuey. Hoffman gave notice of his incumbrance in the office of the clerk of the Campbell county court in Incumbrance Book No. 1, p. 481, pursuant to sections 2358a-1, 2358a-2, etc. Thereupon Shuey filed this action in the Campbell circuit court on November 18, 1925, praying that all executions and other writs issued upon said supposed judgment and all proceedings had thereunder be adjudged null and void; that the sale made to Hoffman be set aside; and that this incumbrance upon the property of Shuey, and the record thereof, be canceled. Hoffman filed a general and a special demurrer to this petition, both of which were overruled. Thereupon Hoffman answered without denying that the writing, purporting to be a judgment of the Campbell quarterly court and of record on page 473 of the Order Book of the Campbell quarterly court, had never been signed by the judge of that court or any successor of his up to the filing of this petition, but alleged that on September 5, 1917, a judgment was duly entered in the quarterly court in his favor against Shuey, and that the then judge of that court signed the same and caused same to be noted upon the docket of said court and to be entered in its entirety upon page 473 of the Order Book of that court, and he then proceeded to outline the steps he had taken to collect this judgment, to which steps we have already referred. He further alleged that he had made diligent effort to find the original judgment in this quarterly court case, signed by the judge as aforesaid, but that it and the other papers in the case had disappeared from the office where the records are kept. Obviously this allegation by Hoffman was an allegation that the then judge of the quarterly court of Campbell county had signed a paper as a judgment, and had caused it to be recorded on the order book, rather than an allegation that he signed the order book after the judgment was written thereon. He also alleged that after notice and motion made in the quarterly court the present judge of the quarterly court had, on December 30, 1925, after this action had been instituted, signed the judgment of September 5, 1917, and entered same nunc pro tunc, and he filed as an exhibit with his answer the order of the Campbell quarterly court which we have copied above. Shuey filed a demurrer to this answer, which was sustained, and Hoffman declining to plead further, the court entered a judgment setting aside the sale of Shuey's real estate that had been made to Hoffman, canceling the transcript, execution, etc.

There are three questions thus presented for our decision. (a) Had the circuit court jurisdiction under the provisions of section 285, Civil Code, to set aside this execution and the proceedings under it? (b) Is an unsigned writing placed upon the record book in the form of a judgment or a proceeding to enforce its collection void? (c) Does the subsequent signing of such an unsigned writing on the order book of the quarterly court make it effective as of the date of its entry (September 5, 1917), or only from the date of its signing (December 30, 1925)? There are no parties affected by this judgment except Hoffman and Shuey. No rights of innocent third parties have intervened, and that must be kept in mind in the reading and application of what we say. Section 285 of the Civil Code provides:

"An injunction to stay proceedings on a judgment shall not be granted, in an action brought by the party seeking the injunction, in any other court than that in which the judgment was rendered."

It is contended here that the special demurrer filed by Hoffman to Shuey's petition should have been sustained because the circuit court had not, under this section, jurisdiction to enjoin the judgment of the quarterly court. If this judgment of the quarterly court was void, then, clearly its collection may be enjoined by the circuit court. See Willis v. Tomes, 141 Ky. 431, 132 S.W. 1043; Robinson v. Carlton, 123 Ky. 419, 96 S.W. 549, 29 Ky. Law Rep. 876; Spencer, et al. v. Parsons, 89 Ky. 577, 13 S.W....