Koren v. Roemheld

• Decision Date: 31 October 1880
• Citation: Koren v. Roemheld, 7 Ill.App. 646, 7 Bradw. 646 (Ill. App. 1880)
• Parties: HANS J. KORENv.JULIUS ROEMHELD.
• Court: Appellate Court of Illinois

7 Ill.App. 646

7 Bradw. 646

HANS J. KOREN

v.JULIUS ROEMHELD.

Appellate Court of Illinois, First District.

October Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.Opinion filed January 4, 1881.

Mr. R. H. FORRESTER and Mr. F. S. BAIRD, for appellant; that although a witness may refresh his recollection by reference to a written memorandum, yet after an inspection of the writing he must be able to speak from his own recollection, cited Elston v. Kennicott, 46 Ill. 187;Seaverns v. Tribby, 48 Ill. 195.

Appellee's objection to the entry of the judgment by confession was not raised on the former trial, and it is now too late to raise it, when the cause is remanded for a new trial: Hollowbush v. McConnell, 12 Ill. 203;Kingsbury v. Buckner, 70 Ill. 514.

The record of the judgment cannot be contradicted by oral testimony: Swartz v. Barnes, 11 Ill. 89;Osgood v. Blackmore, 59 Ill. 261;Welch v. Sykes, 3 Gilm. 197;Kayser v. Hall, 85 Ill. 511;Chambers v. Clearwater, 1 Abb. App. 341;Swiggart v. Harber, 4 Scam. 364;Buckmaster v. Carlin, 3 Scam. 104;McMillum v. Whelan, 27 Cal. 300;Barnett v. Wolf, 70 Ill. 76; Anderson v. Field, 6 Bradwell, 307;Sattler v. The People, 59 Ill. 68;Faulk v. Kellums, 54 Ill. 189.

Mr. A. F. STEVENSON, for appellee; upon the general principles which guide courts in affirming or reversing judgments where the evidence is conflicting, cited Thomas v. Rutledge, 67 Ill. 213;Wood v. Price, 46 Ill. 435;Coari v. Olsen, 91 Ill. 273;Sheerman v. C. & M. R. R. Co.48 Ill. 523;Am. Ex. Co. v. Bruce, 50 Ill. 201;Farr v. Scott, 50 Ill. 490.

Delivery of an execution to an officer, with directions not to levy, or to stay execution till a future day, creates no lien upon the debtor's property: Gilmore v. Davis, 84 Ill. 487;Ross v. Weber, 26 Ill. 224; Kempland v. Macauley Peake's, Nisi Prius, 66;Hunt v. Hooper, 12 Mees. & W. 664;Berry v. Smith, 3 Wash. C. C. 63;Wise v. Darby, 9 Mo. 130; Williamson v. Johnson, 7 Halst.86;Stern's App.64 Pa. St. 447.

If a creditor seize goods of a debtor under an execution, and allows the debtor to remain in possession, it is void as to subsequent executions: Davidson v. Waldron, 31 Ill. 120;Storm v. Woods, 11 Johns. 110.

As to what is necessary to make a good levy: Minor v. Herriford, 25 Ill. 344;Havely v. Lowry, 30 Ill. 446;Logsdon v. Spivey, 54 Ill. 104;Harris v. Evans, 81 Ill. 419;Reamer' App.18 Pa. 510;Pary's App.41 Pa. 273;Hood v. Vanarsdale, 3 Rawle, 401.

The rendition of a judgment is a judicial act--its entry upon the record merely ministerial: Matthews v. Houghton, 11 Me. 377;Fish v. Emerson, 44 N. Y. 376;Davis v. Shafer, 1 Phill. 18.

Whether there was a mistake in the record was a question of fact, to be established by proper evidence: Weed v. Weed, 25 Conn. 337;Hollister v. The Judges, 80 Ohio St. 201.

Judgments may be impeached by strangers for fraud, but not by those who were parties or privies to it: Greene v. Greene, 2 Gray, 361;Peck v. Woodbridge, 3 Day, 30;Field v. Sanderson, 34 Mo. 542;Callahan v. Griswold, 9 Mo. 784;Mason v. Messenger, 17 Iowa, 161;Townsend v. Kerns, 2 Watts, 183;Osborne v. Moss, 7 Johns. 161;Mosely v. Mosely, 15 N. Y. 334;Williams v. Martin, 7 Geo. 378;Hammock v. McBride, 6 Geo. 178; Smith v. Henderson, 23 La An. 649;Barefield v. Bryan, 8 Geo. 463.

Where there is a total want of jurisdiction, the judgment is void and may be impeached collaterally: Elliott v. Piersol, 1 Pet. 340;Thompson v. Tolmes, 2 Pet. 163;Vorhees v. U. S. Bank, 10 Pet. 474;Buckmaster v. Carlin, 3 Scam. 104.

A judgment collusively confessed is fraudulent, and may be attacked by any party whose interest may be affected: Phillips v. Demoss, 14 Ill. 410;Ransom v. Jones, 1 Scam. 291;Denton v. Noyes, 6 Johns. 296;Lewis v. Smith, 2 Serg. & R. 142;Fuerman v. Leonard, 7 Allen, 54;Field v. Gibbs, 3 Pet. 155;St. Albans v. Rust, 4 Vt. 58.

MCALLISTER, P. J.

Although in the order of delivery to the sheriff of the respective executions in question, that of appellant was unquestionably prior in time, yet on appellee's application to the court for an order that the proceeds of the execution sale of the judgment debtor's goods be applied upon his execution, they being insufficient to satisfy either, the court, on the first hearing of such application, decided in appellee's favor on the ground that appellant's execution was dormant and to be postponed to that of appellee, by reason of alleged directions given on behalf of appellant, to the sheriff, at the time his execution was delivered, to hold it for further orders.On appeal to this court that order was reversed, because, in the view of this court, the evidence failed to establish the fact on which it was based.Koren v. Roemheld, 6 Bradwell, 275.On the case coming on for hearing in the court below, a second time, the appellee gave evidence tending to establish the fact of such direction having been given, and also to collaterally impeach appellant's judgment, against the objections and exceptions of the latter, by calling as a witness the judge of the Superior Court, in whose branch of said court the said judgment, according to the record thereof, purported to have been rendered upon a declaration upon a promissory note, a warrant of attorney, and cognovit, and by introducing the oral testimony of said judge to contradict the record of his own court, and to show that, as matter of fact, he, though at the time was holding a term of said court, never saw said papers, though they were on the regular files of the court at the time of the judgment, and did not order said judgment to be entered.The oral testimony of deputy clerks, also tending to contradict the record in the same respect, was likewise admitted by the court against appellant's objections.Upon the foregoing testimony, the court below again decided in favor of appellee, directing the said proceeds to be applied on his execution; and the appellant bringing the case to this court by appeal, assigns said rulings for error.It is contended by counsel for appellee that because the latter was a stranger to appellant's judgment, the record was not conclusive as to him, and that, therefore, the oral testimony was admissible (even though it contradicted the record) for the purpose of showing there was no authority to make a record.

The admissibility of such testimony under the circumstances of the case, is the principal question we propose to discuss.

The court in which the judgment thus sought to be impeached, was entered, is a court of general and superior jurisdiction.The warrant of attorney was appended to the note which was payable to appellant, and authorized any attorney of any court of record in the United States, to appear for the maker and confess judgement on the note in favor of the legal holder thereof, at any time after maturity, for the amount of such note.This judgment was entered in term time, after the maturity of the note.The court therefore had jurisdiction both of the party and the subject-matter.The record, when tried by itself, was complete in every particular.While it is the settled law, as we understand it, that a stranger to a judgment may, if injuriously affected thereby, collaterally impeach such judgment, by showing that the court had no jurisdiction of the person of the defendant in such judgment or of the subject-matter, or that it was obtained by fraud and collusion between the parties to it, still the true question here presented is whether in a case where the court has jurisdiction both of the person and and subject-matter and a complete record is produced affirmatively showing such jurisdiction and a judgment entered at a regular term of the court and by its authority, it is competent, when such record is material only as to the fact of a judgment and its legal consequences, for a stranger to such judgment, to introduce the oral testimony of the judge of the court, to contradict the record and show that the court did not authorize the entry of the judgment.We are of opinion that where there is jurisdiction of the person and subject-matter, and the judgment is not the result of fraud and collusion between the parties to it, and it is material only to establish the fact of such judgment and those legal consequences which result from that fact, the record must be regarded as conclusive even as to strangers.Starkie says: “For the purpose of establishing the fact that such a verdict has been given, or such a judgment pronounced, and all the legal consequences of such a judgment, the judgment itself is invariably not only admissible as the proper legal evidence to prove the fact, but usually conclusive evidence for that purpose; for it must be presumed that the court has made a faithful record of its own proceedings.And, in the next place, the mere fact that such a judgment was given can never be considered as res inter alios acta, being a thing done by public authority; neither can the legal consequences of such a judgment be ever so considered; for where the law gives to a judgment a particular operation, that operation is properly shown and demonstrated by means of the judgment, which is no more res inter alios than the law which gives it force.”1 Starkie on Ev. 255.See, also, note 273. 2 Phil. on Ev. 5th Am. Ed., Cowen & Hill's Notes, by Edwards, page 42.

Greenleaf says: “But, as we have before remarked, the verdict and judgment in any case are always admissible to prove the fact that the judgment was rendered, or the verdict given; for there is a material difference between proving the existence of the record and its tenor, and using the record as the medium of proof of the matters of fact recited in it.In the former case, the record can never be considered as res inter alios acta; the judgment being a public transaction, rendered by public authority, and being persumed to be faithfully recorded.It is therefore...