Hutchinson v. Gorham

• Decision Date: 18 June 1900
• Citation: 37 Or. 347,61 P. 431
• Parties: HUTCHINSON et al. v. GORHAM et al.
• Court: Oregon Supreme Court

61 P. 431

37 Or. 347

HUTCHINSON et al. v. GORHAM et al.

Supreme Court of Oregon

June 18, 1900

Appeal from circuit court, Union county; Robert Eakin, Judge.

Action by James H. Hutchinson and another against O.H. Gorham and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

This is a suit to enjoin the sale of certain real property on execution. The facts are: That on June 13, 1888, one W.W Ellis was the owner in fee of 160 acres of land in Union county, Or., on which day judgment by default was rendered against him for the sum of $2,079.12 in the circuit court of the state of Oregon for Baker county, in an action wherein the defendants H.O. Gorham and Herman Rothchild, as partners under the firm name of Gorham & Rothchild, were plaintiffs. That on September 7, 1888, said defendants, as plaintiffs therein, caused to be filed in the office of the county clerk of Union county a memorandum, purporting to be a transcript of said judgment, whereupon said clerk made an entry in the judgment docket of said county at page 2 of volume B, under the index letter E, as follows:

------------------------------------------------------------------------------- Judgment Docket, Circuit Court, Union Co., Oregon. ------------------------------------------------------------------------------- Judgment Judgment Court. Date of Date of Damages. Debtor Creditor. Judgment. Docket. ------------------------------------------------------------------------------- W.W. Gorham & Transcript 1888, June 1888, 10% $2,079 12 Ellis. Rothchild. Cir.Ct. 13. Sept. 7. Baker Co. -------------------------------------------------------------------------------

--That in December, 1888, the plaintiffs herein loaned to Ellis the sum of $1,100, to secure the payment of which he executed a mortgage on said real property, and on February 6, 1896 deeded the same to them in payment of the mortgage debt, which then amounted to $1,825. That on April 20, 1899, an execution was issued on said judgment, directed to the sheriff of Union county, who in pursuance thereof levied on said real property and advertised it for sale, to prevent which this suit was instituted; plaintiffs alleging that they were the owners in fee of said land, which they purchased without knowledge or notice of said judgment, and that a sale of the premises on said execution would create a cloud on their title. The answer having put in issue the allegations of the complaint, a trial was had, resulting in a decree as prayed for, and the defendants appeal.

J.B. Messick and W.H. Packwood, for appellants.

T.H. Crawford, for respondents.

MOORE, J. (after stating the facts).

The question presented by this appeal is whether the entry in the judgment docket of Union county afforded plaintiffs constructive notice of the judgment rendered against their grantor in Baker county, Or. The following statutory provisions are deemed essential to a clear understanding of the question involved: "The records of the circuit courts are, a register, journal, judgment docket, execution docket, fee-book, jury-book, and final record." Hill's Ann.Laws Or. § 569. "The journal is a book wherein the clerk shall enter the proceedings of the court during term time, and such proceedings in vacation as this Code specially directs." Id. § 571. "The judgment docket is the book wherein judgments and decrees are docketed, as elsewhere provided in this Code. Each page thereof shall be divided into eight columns, and headed as follows: Judgment Debtors; Judgment Creditors; Amount of Judgment; Date of Entry in Journal; When Docketed; Appeal When Taken; Decision on Appeal; Satisfaction, When Entered." Id. § 572. "All judgments shall be entered by the clerk in the journal, and shall specify clearly the amount to be recovered, the relief granted, or other determination of the action. *** In the entry of all judgments, except judgments by default for want of an answer, the clerk shall be subject to the direction of the court." Id. § 260. "When judgment is given for want of an answer, the entry shall state substantially that the defendant has been duly served with the summons, and has failed to answer the complaint." Id. § 263. "When a decision has been made sustaining or overruling a demurrer, unless the party against whom the decision is made be allowed to amend or plead over, judgment shall be given for the plaintiff or defendant, as the case may be, for such amount or relief, or to such effect, as it appears from the pleadings he is entitled to; but if the cause is otherwise at issue upon a question of fact, the court may order the entry of judgment to be delayed until such issue be tried or otherwise disposed of." Id. § 264. "When judgment is given in any of the cases mentioned in sections 263 and 264, unless otherwise ordered by the court, it shall be entered by the clerk within the day it is given." Id. § 265. "Immediately after the entry of judgment in any action, the clerk shall docket the same in the judgment docket. At any time thereafter, while an execution might issue upon such judgment, and the same remains unsatisfied in whole or in part, the plaintiff, or in case of his death his representative, may file a certified transcript of the original docket in the office of the county clerk of any county in this state. Upon the filing of such transcript, the clerk shall docket the same in the judgment docket of his office. From the date of docketing a judgment as in this title provided, or the transcript thereof, such judgment shall be a lien upon all the real property of the defendant within the county or counties where the same is docketed, or which he may afterwards acquire therein, during the time an execution may issue thereon." Id. § 269. "Whenever, after the entry of judgment, a period of ten years shall elapse without an execution being issued on such judgment, the lien thereof shall expire." Id. § 270.

------------------------------------------------------------------------------- ------------------------------------------------------------------------------- Judgment. Time of Entry. Entered In Judgment Book. -------------------- ---------------- ------------ NO. Judgment Judgment Amt. of Interest. Month day year. No. Page. Debtors. Creditors. Judgment ------------------------------------------------------------------------------- L118 W.W. Ellis Gorham & 2,079 12 10% June 13 '88 I 44 Rothchild -------------------------------------------------------------------------------

Under the title "Remarks," in the last column at the right, appears the following: "This judgment satisfied in the amount of $1,000.00. See execution docket 'C,' page 124." This docket contains other columns, but, no entries having been made therein respecting the judgment under consideration, they are omitted.

An...