Lockwood v. Thompson & Buchmann

• Decision Date: 07 December 1916
• Docket Number: 6 Div. 387
• Court: Alabama Supreme Court
• Parties: LOCKWOOD et al. v. THOMPSON & BUCHMANN.

73 So. 504

198 Ala. 295

LOCKWOOD et al. v. THOMPSON & BUCHMANN.

6 Div. 387

Supreme Court of Alabama

December 7, 1916

Appeal from Circuit Court, Cullman County; R.C. Brickell, Judge.

Action by Thompson & Buchmann against J.P. Lockwood and others. From an order overruling a motion to retax costs under a judgment for plaintiff in the circuit court against defendant and the sureties on his appeal bond, on appeal from a judgment for the plaintiff in the justice court, defendants appeal. Transferred from the Court of Appeals under Act April 18 1911 (Laws 1911, p. 450) § 6. Affirmed.

J.P Lockwood, of Cullman, for appellants.

A.A Griffith, of Cullman, for appellee.

THOMAS J.

This cause was begun in the justice court by Thompson &amp Buchmann's attaching for rent as landlords. From a judgment for plaintiffs, the defendant S.P. Williams appealed to the circuit court, with J.P. Lockwood, J.W. Austin, and C.C. Copeland as sureties on his appeal bond.

The circuit judge's trial docket (March 8, 1915) recited the fact as follows:

"Jury and verdict for the plaintiff for $11.00. Property levied on condemned and ordered sold for satisfaction of the judgment."

On this memorandum the clerk of the court entered a formal judgment as follows:

"On this the 8th day of March, 1915, come the parties by attorneys. Thereupon issue being joined on plea of general issue, with leave to plead anything, which would be good in bar if specially pleaded. Come a jury of good and lawful men, to wit, N.D. Mayo and eleven others, who being duly [s]elected, impaneled and sworn according to law, upon their oaths do say, 'We the jury find the issue in favor of the plaintiffs and assess their damages at eleven ($11.00) dollars,' and it appearing to this court that this suit was brought into this court by appeal from the justice court, and that the defendant executed an appeal bond in the sum of thirty-eight ($38.00) dollars, with waiver of exemptions, with J.P. Lockwood, J.W. Austin and C.C. Copeland as sureties thereon, conditioned to prosecute said appeal to effect, and failing therein to pay such judgment, both as to debt and costs, as may be rendered against the defendant by this court, and the defendant failing therein, it is ordered and adjudged by the court that the plaintiffs Thompson & Buchmann have and recover of the defendant S.P. Williams and his sureties, J.P. Lockwood, J.W. Austin and C.C. Copeland, on said appeal bond, the sum of eleven ($11.00) dollars, together with the costs of this court and the court below, in this behalf expended, for which let execution issue with waiver of exemptions indorsed thereon, not, however, to exceed the amount of said appeal bond as to sureties."

This judgment entry contained the further provision of condemnation of the property levied upon.

When execution was issued on the judgment, the sureties on the appeal bond filed a motion under section 3684 of the Code of 1907 to retax the costs. Such a motion may be heard at the next ensuing term of the court. Briley v. Hodges, 3 Port. 335.

However, at the fall term (September 28, 1915) of the circuit court, the sureties, in lieu of their motion to retax the costs, moved for an amendment of the judgment nunc pro tunc, so that their names and liability fixed be expunged from said minute entry; and that the clerk be required to enter a judgment on said verdict, to the effect that the plaintiffs have and recover of the defendant S.P. Lockwood, only, the sum of $11, with right to execution therefor, and that the property attached at the instance of the plaintiffs be condemned and ordered sold for the satisfaction of the judgment.

This motion, which was heard on the 28th of September, 1915, was overruled; defendants being taxed with the costs in that behalf expended. From such ruling the appeal is taken, and error thereto is now assigned.

Appellants' theory is that the "minutes must follow the judge's notes, no matter if these point to an erroneous judgment"; that the judge's memorandum: "Jury and verdict for plaintiff for $11.00. Property levied on, condemned and ordered sold for satisfaction of the judgment"--without more, was one purely in rem, and that not even the defendant in attachment was bound thereby in personam. On the other hand, the appellees insist that the bench notes were mere directions to the clerk to aid him in writing the formal judgment of the court, and that the judgment so entered and enrolled as part of the minutes of the court is the sole memorial of the judgment of the court.

The statute requires that on appeal or certiorari, when the judgment of the justice court is affirmed, judgment "must be rendered by the court against the sureties as well as the principal, which must include the costs of the inferior and appellate court." Code 1907, § 4725. This section was construed in Minchener v. Robinson, 169 Ala. 472, 53 So. 749, as follows:

"In the circuit court, judgment was rendered that plaintiff recover the property sued for or its alternate value of defendants and their sureties. It is now said that the judgment against the sureties was erroneous. Rand v. Gibson, 109 Ala. 266, 19 So. 533, and Clem v. Wise, 133 Ala. 403, 31 So. 986, are cited. Both of these were statutory actions of detinue. The bonds were given to secure possession pending the suit, and were conditioned upon the failure to deliver the property to the successful party within 30 days after judgment. The procedure in such cases is provided for in section 3783 of the Code of 1907. The sureties against whom judgment in this case was rendered in the circuit court were parties to a bond of supersedeas on the appeal, and judgment was properly rendered in accordance with section 4725."

It is thus plain, not only that the judgment may be against the defendant in attachment, but that it should be against the sureties on his bond for appeal from the justice court to the circuit court, as well.

To what extent, then, were the bench notes sufficient as a direction to the clerk, in term time, to enter the judgment complained of? In a very well considered opinion, Mr. Justice Denson said:

"If *** the bench notes do not constitute the judgment, but merely serve as directions to the clerk as to what judgment should be [entered], it would seem to follow that it requires the entry of judgment to be made during the term. The requirement of the statute that the clerk shall 'keep a book, in which must be entered the minutes of each day's proceedings during the term of the court, and the orders and judgments, in the order in which they are made or rendered,' carries the implication that until that is done the judgment is inchoate only. It is incomplete. Though possessing the character of potentiality, it lacks the character of actuality, and hence is without probative force. This view is strengthened by that other statutory requirement (though construed to be directory) that the minutes of the court must be read each morning in open court, and on the adjournment of the court must be signed by the judge. Civ.Code 1896, § 2641. Under our practice, the court retains control of its journals during the term, during which time it may add to, strike out, or alter that which is on the journals, or incorporate new matter. 'On the final adjournment, however, that control is lost. This we take to be elementary.' " Wynn et al. v. McCraney et al., 156 Ala. 630, 636, 46 So. 854, 856.

The Wynn Case was an action on the clerk's official bond for failure to enter the judgment, and the docket...