Mcgee v. Ancrum

• Decision Date: 27 March 1894
• Citation: 33 Fla. 499,15 So. 231
• Parties: McGEE v. ANCRUM.
• Court: Florida Supreme Court

15 So. 231

33 Fla. 499

McGEE v. ANCRUM.

Florida Supreme Court

March 27, 1894

Error to circuit court, Hamilton county; John F. White, Judge.

Action by H. T. McGee against J. H. Ancrum. A judgment was entered on a verdict for plaintiff. Execution was issued on the judgment, and levied on defendant's property. A motion to set aside defendant's affidavit of illegality of the execution was overruled, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Motion for a new trial, made upon the return of a verdict and continued, by special order entered upon the minutes, to a day beyond the term when the verdict was rendered, can be heard and disposed of by the judge in vacation, and upon such disposition a final judgment can be entered by the clerk under the order of the judge, though not on a rule day. On the hearing of such a motion the judge is holding a term of court as to that case, and the entries of the clerk made in obedience to the orders of the court are the entries of the judge himself.

2. On a writ of error without a bill of exceptions the appellate court is confined to assignments of error based upon the record proper.

3. A motion to set aside an affidavit of illegality of the issuance of an execution, and for execution against the defendant and the sureties on his bond, where the ground of illegality in the affidavit is that there was no judgment upon which said execution issued, and that what purports to be a judgment entered in the judgment record by the circuit clerk was entered without any authority, involves the legal sufficiency of said judgment as disclosed by the record proper, and a ruling denying the motion is, in effect, a decision that the judgment was illegal and void.

4. M obtained a verdict in the circuit court against A., and a motion for a new trial was made, but not disposed of during the term. Without entering final judgment on the verdict, an order was entered upon the minutes, continuing the hearing of the motion to a day beyond the term, and on the adjourned day the court overruled the motion, and directed the clerk to enter final judgment upon the verdict, and the clerk entered the judgment on a day other than a rule day. Execution emanating from the judgment was levied upon property of defendant in execution, and affidavit of illegality was made on the ground that the judgment was entered without authority, and was void. A motion to set aside the affidavit of illegality, and that execution issue against defendant and sureties on his bond, was denied. Held, that the ruling was error, and that the judgment was properly entered by the clerk under the order of the judge.

COUNSEL A. W. Cockrell & Son, for plaintiff in error.

B. B Blackwell, for defendant in error.

OPINION

MABRY J.

Plaintiff in error, as assignee of W. B. Williams & Son, instituted an action of assumpsit in the circuit court for Hamilton county against J. H. Ancrum, defendant in error, and at a term of said court held on the 29th day of April, 1887 a verdict was rendered in favor of plaintiff and against defendant for the sum of $800, with interest for two years. The following recital appears in the record, made the same day that the verdict was rendered, viz.: 'A motion was made for a new trial by counsel for defendant, and by consent of counsel in open court was adjourned to Wednesday, May 4, 1887, at Live Oak, Fla.' The court then, on the same day, without entering judgment on the verdict, adjourned the court for the term. On May 7, 1887, an order was made, after reciting the facts stated in the previous order in reference to the adjournment of the motion, and that it had, by consent of counsel, been adjourned from the 4th to the 7th of May, 'that said motion be denied, and that judgment be entered by the clerk upon the verdict, to which ruling defendant, by his counsel, excepted, which is accordingly noted.' This order, signed by the judge, was entered by the clerk on the judgment docket on May 9, 1887, and immediately followed by the following entry, viz.: 'Whereupon it is considered, ordered, and adjudged that said plaintiff, H. T. McGee, assignee,' etc., 'do have and recover of and from said defendant, J. H. Ancrum, the sum of nine hundred and twenty-eight dollars for his damages, principal and interest, and the further sum of fourteen and 89-100 dollars as his costs in this behalf expended, and the defendant in mercy,' etc. 'Witness: Jno. M. Caldwell, clerk of said court, and the seal of said court, this May 9th, 1887,' and signed by the clerk. June 20, 1887, the clerk issued an execution on the foregoing entry of judgment, and it was levied upon property of the defendant. Thereupon the defendant filed an affidavit of illegality of the issuance of the execution, and the ground of illegality alleged therein is the following, viz.: 'That there is no judgment upon which said execution issued, and that what purports to be a judgment entered in the judgment record of Hamilton county by the clerk against this affiant was entered without any authority, and is wholly void.' Defendant also filed a bond, as provided by the statute in such cases. The following order also appears in the record, to wit:

'In the Circuit Court, Hamilton County, Florida. H. T. McGee, Assignee of W. B. Williams & Son, vs. J. H. Ancrum. Motion to set aside affidavit of illegality, and that execution issue against defendant and sureties on bond. The above motion coming on to be heard, and was argued by counsel for plaintiff and defendant. Upon consideration, said motion is overruled, with costs. Done and ordered at chambers, the 30th day of January, 1888. John F. White, Judge.

'To the judgment overruling said motion counsel for plaintiff excepted, and his said exception is accordingly noted. John F. White, Judge. 30th January, 1888.'

We find copied into the record a notice by counsel for plaintiff in execution, to the effect that a motion would be made, and was thereby made, before the judge at chambers, to set aside the affidavit of illegality, and that execution be ordered against defendant and the sureties on the bond filed with the affidavit of illegality; and also an agreement, signed by counsel of both parties on the 30th day of January, 1888, that the said order of the judge of that date is 'a final judgment in said matter, finally sustaining said affidavit, and adjudging that said execution issued illegally.' Service of the notice was acknowledged by counsel for defendant in execution on January 22, 1888, and, as appears by an indorsement on the notice, it was filed with the clerk on February 2, 1888, after the order of the judge was made.

The errors assigned relate to the ruling of the judge on the affidavit of illegality. The case is before us on writ of error, without a bill of exceptions, and in disposing of the errors assigned we are confined to the record proper. Columbia Co. v. Branch, 31 Fla. 62, 12 So. 650.

What the judge decided will be ascertained from his own language above his signature, and entered of record, and no importance will be attached to the agreement of counsel filed in the cause. There is really no proper record evidence that the notice of motion referred to was before the judge when the order mentioned was made, but, as this order recites that it was made on motion to set aside the affidavit of illegality and that execution issue against the defendant and the sureties on the bond, the same result would...