Johnson v. Schloesser

• Decision Date: 06 January 1896
• Docket Number: 17,935
• Citation: 45 N.E. 702,146 Ind. 509
• Parties: Johnson et al. v. Schloesser
• Court: Indiana Supreme Court

45 N.E. 702

146 Ind. 509

Johnson et al. v. Schloesser

No. 17,935

Supreme Court of Indiana

January 6, 1896

From the Ripley Circuit Court.

Reversed.

Adam Stockinger and J. B. Rebuck, for appellant.

M. R Connelley, for appellee.

OPINION

McCabe, J.

The appellee sued the appellant, Johnson, and Henry Bushing sheriff of Ripley county, in a complaint of two paragraphs seeking to enjoin the sale on execution of certain land on a judgment in favor of appellant, Hannah Johnson, and against one John W. Johnson.

The circuit court overruled a demurrer for want of sufficient facts to each paragraph of the complaint and sustained a like demurrer to the second paragraph of the separate answer of Hannah Johnson. A trial of the issues resulted in a finding and judgment in favor of the plaintiff and against the defendant, perpetually enjoining the sale of said land on said judgment and execution.

The errors assigned call in question the rulings above mentioned, and the action of the circuit court in overruling the defendant's motion for a new trial. The last error assigned is waived by the failure of appellants' counsel to discuss the same in their brief. The question of law involved arises on the facts stated in the complaint, as well as those stated in the answer.

It appears from the complaint that on August 8, 1887, one John W. Johnson and Clemency B. Johnson conveyed a certain town lot, particularly described in the town of Batesville, in Ripley county, Indiana, to James W. White, and on April 9, 1892, said James W. White and wife conveyed the same for a valuable consideration to the plaintiff, appellee, George F. Schloesser; that on September 13, 1886, in a cause pending in the Ripley Circuit Court for divorce, wherein said Hannah Johnson was plaintiff, and said John W. Johnson was defendant, said court rendered judgment, awarding her a divorce and for $ 56.00 alimony, to be paid on September 14, 1886, and the further sum of $ 50.00 each year during the natural life of Clemency B. Johnson; that said John W. Johnson paid the $ 56.00 as ordered on September 14, 1886, but that said payment was never entered on the order book, judgment docket, or elsewhere; that the only record or entry of said judgment ever placed in the judgment docket of said court by the clerk thereof, or by any other person, is as follows: "Judgment docket F, page 200. Hannah Johnson v. John W. Johnson, order book FF, page 462; judgment against the defendant for costs, date of rendition September 13, 1886."

That the fee docket of said court in which the fees and costs accrued in said action were entered, shows that said costs were duly paid by said plaintiff, and on the margin of said fee book, on the same page whereon is entered said fees and costs, the following entry is made, to-wit: "It was the agreement between the plaintiff and the defendant that the plaintiff is to pay this cost, and that when it is paid by her it is to be a satisfaction of this judgment as against the defendant. (Signed) Charles H. Willson, attorney for plaintiff."

That at the time plaintiff purchased said real estate he had no knowledge or notice of any kind that the defendant, Hannah Johnson had or claimed any judgment against said John W. Johnson, or any other person; that the fee book showed, at the time the abstract hereinafter mentioned was made, at the time plaintiff purchased said premises, that the costs aforesaid were paid, and showed the entry of satisfaction of said judgment, signed by Charles H. Willson, as aforesaid; that before purchasing said premises, to-wit: on March 23, 1892, plaintiff employed the recorder of Ripley county to make him an abstract of title for said real estate; that said abstract when so made did not mention, show or allude to any judgment against said John W. Johnson in favor of any person; that said recorder, on examining the judgment docket of said court, in preparing said abstract, found the only entry on record of said judgment to be as set forth above; that believing and relying on said abstract, and having no knowledge of the judgment mentioned, the plaintiff purchased said real estate, as aforesaid; that on the 15th day of June, 1894, said defendant, Hannah Johnson, caused an execution to issue out of the clerk's office of the Ripley Circuit Court on said judgment for the sum of $ 406.00, with interest and costs, directed to the sheriff of said Ripley county, which came to the hands of the defendant sheriff of said Ripley county, and was by him, on August 24, 1894, levied on said real estate; that said defendants are threatening to sell said real estate by virtue of said execution and judgment, unless restrained, and thereby cast a cloud on plaintiff's title to said real estate. Prayer for a temporary restraining order and on the final hearing, a perpetual injunction.

Two reasons are urged by the appellant why the complaint is not good, namely: (1) That the lien of the judgment is not lost as against anybody by the failure of the clerk to enter it on the judgment docket; and (2) if it would be so lost as against a subsequent bona fide purchaser, that there was enough entered on the judgment docket in this case to put an ordinarily prudent man on inquiry which must lead to full knowledge of the judgment. If the question of law raised by the first reason urged should be decided in favor of appellant the second would be wholly unimportant. The appellee contends that while the judgment is a lien on all the real estate of the judgment defendant in the county as against him without being entered on the judgment docket, yet that it is not a lien as against subsequent good-faith purchasers for value of any of such real estate, unless such judgment is entered on the judgment docket; and further, that the entry here was not such as to put him on inquiry.

Several sections of the code embraced in Article 24, title "judgment," exert a controlling influence in the proper determination of the question. Section 588, Burns' R. S. 1894 (R. S. 1881, 579), provides that: "The judgment must be entered in the order book, and specify clearly the relief granted or other determination of the action." Section 591, Burns' R. S. 1894 (R. S. 1881, 582), provides that: "The clerk of every court of record shall keep a docket, in which he shall enter, within thirty days after each term of the court, in alphabetical order, a statement of each judgment rendered at such term, containing--First. The names, at length, of all the parties. Second. The amount of the judgment and costs, and the date of its rendition. Third. If the judgment be against several persons, the statement shall be repeated under the names of each defendant, in alphabetical order." Section 593, Burns' R. S. 1894 (R. S. 1881, 584), provides that: "Such docket shall be a record, and open during the usual hours of transacting business to the examination of any person desiring it." Section 594, Burns' R. S. 1894 (R. S. 1881, 585), provides that: "Every clerk neglecting to enter any judgment or recognizance, as herein required, shall be liable to any person injured for the amount of damages sustained by such neglect, to be recovered in an action against the clerk alone, or upon his official bond against him and his sureties." Section 617, Burns' R. S. 1894 (R. S. 1881, 608), provides that: "All final judgments in the supreme and circuit courts for the recovery of money or costs shall be a lien upon real estate and chattels real, liable to execution in the county where judgment is rendered, for the space of ten years after the rendition thereof, and no longer, exclusive of the time during which the party may be restrained from proceeding thereon by any appeal or injunction, or by the death of the defendant, or by agreement of the parties entered of record."

It is conceded on both sides, and we think correctly, that in solving the question here involved, the several sections of the code quoted above must be construed together. But the appellant contends that they must be so construed as to hold that the action for damages against the clerk for failure to docket a judgment is intended to be given to the good-faith purchaser, and not to the holder and owner of the judgment; and, on the contrary, the appellee contends that such right of action was intended to be given to the judgment creditor, and not to the bona fide purchaser of the real estate for value.

Appellee's learned counsel, in support of the latter position, say: "Now, we hold that while the judgment docket is not necessary to constitute the judgment lien, it is necessary to constitute sufficient notice thereof to third parties, and that a subsequent purchaser for a valuable consideration is only bound to look to the judgment docket for judgment liens, and * * * in the absence of actual notice he takes the land discharged from the lien, and the remedy of the judgment plaintiff, if there is no other property, is against the clerk, under section 585, R. S. 1881."

In support of this contention appellee's counsel cite Berry v. Reed, 73 Ind. 235. While the opinion in that case contains some remarks by the learned judge who delivered it, favorable to appellee's contention, yet such remarks were clearly obiter dictum. The questions actually involved, and to a determination of which the opinion strictly confines the decision, do not support the appellee's contention. The judgment lien there involved was sought to be created and established by the filing of a transcript of a judgment rendered in the common pleas court of another county than that in which the transcript was filed. It was there said that: "The plain intent of the lawmakers was that the filing and recording provided for in ...