Hower Corp. v. Vance
| Decision Date | 07 February 1945 |
| Docket Number | 30034,30035. |
| Citation | 144 Ohio St. 443,59 N.E.2d 377 |
| Parties | HOWER CORPORATION v. VANCE et al. VANCE et al. v. HOWER CORPORATION. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
Where an entry of a judgment of the Municipal Court of Akron, for a sum less than $100, made upon a half-sheet of such court and approved by the endorsement of a judge thereof, is, as so endorsed, recorded by the clerk in the civil docket of the court, in which, by rule of court, there is also made a final and complete record of a case, there is a journalization and record of a judgment within the purview of Section 11604 General Code.
Appeals from Court of Appeals, Summit County.
Case number 30034 is an appeal from a judgment entered by the Court of Appeals of Summit county reversing a judgment of the Common Pleas Court of that county overruling a motion by Fred S. and Ollie Vance, hereinafter called the appellees, to declare null and void a certificate filed therein of a judgment rendered in the Municipal Court of Akron in favor of the Hower Corporation, hereinafter called the appellant.
Case number 30035 is an appeal from a judgment entered by the Court of Appeals of Summit county reversing a judgment of the Common Pleas Court of that county dismissing the petition of the appellees to enjoin the enforcement of the certificated judgment above referred to.
The facts which are the basis of these appeals may be stated as follows:
Section 1579-516, General Code, provides in part:
Purporting to act under the rule-making power of that section of the General Code, the judges of the Municipal Court of Akron adopted certain rules governing the practice and procedure of that court.
Rule 2 provides for the classification of cases in that court and is as follows:
'All cases shall be classified as follows:
Rule 4, relating to dockets and records, provides as follows:
'The clerk shall prepare and keep the following dockets and books which shall be the public records of the court:
'(1) A 'civil docket' in which shall be entered in consecutive order, all civil actions brought in said court, together with all proceedings had therein, properly dated, which docket shall be the final and complete records of said cases, except as hereinafter provided.
'(5) A 'journal' in which shall be recorded the orders of the court, made in cases wherein extended records are ordered to be. made, or are demanded by a party. * * *
(Italics ours.)
Rule 6, relating to procedure, provides that:
'All actions for money, where the amount prayed for in the petition or in the cross-petition is $100 or more, shall be governed by the rules of procedure as set forth in the Ohio General Code in governing the Courts of Common Pleas, insofar as they are consistent with the act creating this court and the rules hereby adopted.
'All other actions shall be governed by the rules and regulations set forth in the Ohio General Code for governing justices of the peace courts, insofar as they are consistent with the act creating this court and the rules hereby adopted.'
Under the rules and practice of the court, in cases of the second class, the clerk, as the case proceeds, records in the civil docket, which also serves as a journal, the memoranda made by him on the half-sheet as to filings, etc., and the memoranda made by the court on the half-sheet comprehending the action of the court throughout the case, including the entries of orders and judgments.
On May 16, 1940, appellant brought an action against appellees in the Municipal Court of Akron to recover the sum of $74.92 with interest thereon from May 16, 1940.
On May 23, 1940, a default judgment was entered on the half-sheet of that court, which entry was attested and approved by the judge by his signature 'Powers, J.,' in the following words and figures.
'5/23/40
This entry so endorsed on the half-sheet was by the clerk recorded in civil docket 395, page 203088, of the records of the Municipal Court of the city of Akron.
On August 14, 1943, a certificate of judgment was issued by the clerk of the Municipal Court of Akron, which certified that a judgment was rendered in favor of appellant against appellees for $75 and costs in the sum of $6.20 with interest at the rate of six per cent from May 23, 1940. On August 16, 1943, such certificate of judgment was filed in the office of the clerk of the Common Pleas Court of Summit county, and was, by the clerk, recorded in judgment docket 4, page 347, of the records of such court, and numbered JL-2430. Execution on such judgment was caused to be issued by appellant and was returned by the sheriff unsatisfied. An affidavit in aid of execution was filed in the Common Pleas Court of such county on the certificate of judgment, and an order issued to the Firestone Tire & Rubber Company to answer respecting its indebtedness to Fred S. Vance.
On August 28, 1943, the appellees filed a motion in the Common Pleas Court of such county, in cause No. JL-2430, for an order canceling and holding null and void the certificate of judgment, and for an order dissolving the proceedings in aid of execution, for the reason that no judgment had been journalized or entered by the Municipal Court of Akron in the original case in which the certificate of judgment was issued.
On August 28, 1943, the appellees filed a petition in the Common Pleas Court of Summit county, in cause No. 143820, praying for a restraining order and injunction against the enforcement of the judgment in question for the reason that although the Municipal Court of Akron is a court of record, no journal entry of the judgment was ever made, approved or spread upon the journal of that court.
On October 15, 1943, in cause No. JL-2430, the Common Pleas Court overruled the motion to hold the certificate of judgment null and void, and on October 18, 1943, in cause No. 143820, dismissed the petition for injunction and gave judgments in both cases, for appellant.
On April 20, 1944, the Court of Appeals reversed such judgments and entered judgments for the appellees.
These cases are now in this court for review by reason of the allowance of motions to certify.
M. Louis Palmieri, of Akron, for appellant.
E. F. Mooneyham, of Akron, for appellees.
The sole question in these cases is whether a judgment in the original action in the Municipal Court of Akron was sufficiently entered, journalized and recorded to meet the requirements of the law with reference to the rendition of judgments.
The appellees insist that since by Section 1579-497, General Code, the Municipal Court of Akron is made a court of record, the judgments of that court must be entered exclusively in the manner required by the Code of Civil Procedure and especially by Section 11604, General Code, which provides:
Together with the claim that all judgments of a court of record must be rendered in accordance with the provisions of Section 11604, General Code, above quoted, appellees call attention to the numerous holdings of this court to the effect that a court of record renders a judgment only when a journal entry is prepared, approved by the court and filed with the clerk for journalization. Industrial Commission v. Musselli, 102 Ohio St. 10, 130 N.E. 32; State ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St. 477, 26 N.E.2d 1014; In re Estate of Lowry, 140 Ohio St. 223, 42 N.E.2d 987; Krasny v. Metropolitan Life Ins. Co., 143 Ohio St. 284, 54 N.E.2d 952.
This court still adheres to the rule established by those cases. However, the same act which makes the Municipal Court of Akron a court of record, also provides that the judges of that court shall designate the method of keeping the records and shall adopt rules relating to matters of practice and procedure in such court. The act further provides that all laws conferring power and jurisdiction upon the Courts of Common Pleas or justices of the peace to hear and determine certain causes and proceedings, prescribing the force and effect of their judgments or orders, and authorizing or directing the execution of the enforcement thereof, shall be held to extend to the Municipal Court of Akron. However, the act carefully provides an exception to the effect that such laws shall not apply when inconsistent with the jurisdiction conferred upon the court by this act or are clearly...
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