Locke v. Hubbard
| Decision Date | 11 December 1896 |
| Citation | 69 N.W. 588,9 S.D. 364 |
| Parties | LOCKE v. HUBBARD. |
| Court | South Dakota Supreme Court |
Appeal from Minnehaha county court; E. Parliman, Judge.
Action by C. W. Locke against C. W. Hubbard to recover the value of goods converted by defendant. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.
Davis Lyon & Gates, for appellant. Joe Kirby, for respondent.
This was an action to recover the value of a stock of drugs, etc alleged to have been converted by the defendant and appellant. The appellant justified the seizure under and by virtue of a judgment and execution in the case of Noyes Bros. & Cutler against B. L. Havdahl. The plaintiff claimed the right to the possession of the stock of drugs under and by virtue of a chattel mortgage executed by said Havdahl to one N. J. Deisher, trustee, and by him transferred to the plaintiff, as was alleged by the plaintiff.
The important question in the case arises on the ruling of the court in excluding the judgment and execution in the action of Noyes Bros. & Cutler against Havdahl, under which the appellant, as sheriff of Minnehaha county, sought to justify his seizure of the property in controversy. H. B. Carleton, a witness on the part of the defendant, testified that he was the clerk of the circuit and county court in and for Minnehaha county, and on cross-examination he testified that The defendant then offered the judgment roll and execution in evidence, to which the counsel for plaintiff objected, and the same were excluded, and defendant excepted. The grounds of the plaintiff's objection are not stated in the abstract, but both parties have argued the case in this court, upon the theory that the objection was made upon the ground that it appeared from the evidence of Carleton, given without objection, that no judgment had been entered in the judgment book at the time the execution issued, and that the judgment and execution were evidently excluded upon that ground by the trial court. The copy of the judgment found in the judgment roll is in the usual form of a default judgment, and appears to have been made by the court, and signed by the circuit judge in his official capacity. As no judgment, however, was entered in the judgment book at the time the execution was issued, the respondent insists that the clerk had no authority to issue the execution, and it was therefore void.
It is contended by the learned counsel for the appellant that the judgment, when reduced to writing, and signed by the judge was the final determination of the action, and execution issued thereon was a valid execution, though no judgment had been, in fact, entered in the judgment book, and that the court, therefore, erred in excluding the judgment roll and execution. The learned counsel for the respondent contends that the paper signed by the judge was, in legal effect, simply an order for judgment, and that there can be in this state no legal judgment until one is entered in the judgment book, which will authorize the issuance of an execution, the filing of a judgment roll, or the docketing of the judgment. This is an important question in this state, and has never yet been passed upon by the appellate court. A judgment is defined by section 5024, Comp. Laws, as follows: "A judgment is the final determination of the rights of the parties in the action." It will be observed that what constitutes the evidence of such judgment, or when or how such determination of the rights of the parties shall become effectual as a judgment, is left unprovided for by that section. It defines a judgment in the language of most of the text-books upon this subject. Section 5095 provides that "judgment upon an issue of law or fact *** may be entered by the clerk upon the order of the court or the judge thereof." Section 5101 provides that "the clerk shall keep, among the records of the court, a book, for the entry of the judgments, to be called the 'judgment book."' Section 5102 provides: "The judgment shall be entered in the judgment book, and shall specify clearly the relief granted or other determination of the action." It will be noticed that no judgment is mentioned which is to be copied or entered in the judgment book, but that the judgment shall be entered by the clerk in the judgment book. Section 5103 provides, that, "immediately after entering the judgment," a judgment roll shall be made up, and what it shall contain. Section 5104 provides that, "on filing the judgment roll," the judgment shall be docketed, etc. And section 5110 provides that "the party in whose favor judgment has heretofore been or shall hereafter be given *** may, at any time within five years after the entry of judgment, proceed to enforce the same by execution." Section 5111 provides: "After the lapse of five years from the entry of judgment," application can be made to the court, etc. It will thus be seen that the judgment entered in the judgment book is the only judgment mentioned in the statute. What authority, therefore, has this court to hold any paper or record a judgment other than the one entered in the "judgment book"? The judgment there entered is the original judgment, and the only one the law contemplates. Undoubtedly, the court, judge, or counsel may very properly prepare a form of judgment for the clerk to enter, but such paper, though signed by the judge or court, is no more the judgment of the court than the one prepared by counsel. It may be, and probably would be held, an order for judgment. If these views are correct, then it follows that the execution was issued before the entry of any judgment upon which it could be based, and before the clerk was authorized to issue it, as he is only authorized to issue the execution at any time within five years after the entry of the judgment, but not before such entry.
The counsel for the appellant have cited a large number of authorities, including both text writers and courts, in support of their contention that the judgment prepared and signed by the judge is the judgment of the court; but the statutory provisions on this subject are so various that these decisions throw but little light upon the question under the peculiar provisions of our statute. The statutes of Minnesota upon the subject of judgments are very nearly, if not identically, the same as those in this state, and that court has uniformly held that there is no judgment in that state, other than the one entered in the "judgment book." In Rockwood v. Davenport, 37 Minn. 533, 35 N.W. 377, that court, by Gilfillan, C. J., says: The supreme court of North Dakota, construing the same provisions of the Code of Civil...
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