Mitchell v. St. John

• Decision Date: 13 December 1884
• Docket Number: 11,265
• Citation: 98 Ind. 598
• Parties: Mitchell et al. v. St. John et al
• Court: Indiana Supreme Court

98 Ind. 598

Mitchell et al. v. St. John et al

No. 11,265

Supreme Court of Indiana

December 13, 1884

From the Morgan Circuit Court.

J. V Mitchell, W. R. Harrison and W. E. McCord, for appellants.

G. W Grubbs, M. H. Parks and J. H. Jordan, for appellees.

OPINION

Bicknell C. C.

Aaron St. John was seeking to enforce an execution issued upon an alleged judgment in his favor against James M. Mitchell, John R. Mitchell and Albert S. Mitchell. The complaint in the present case was filed by the Mitchells to restrain by injunction the collection of said judgment. They made Adams and Newby and Ferguson co-defendants with St. John, alleging that they were claiming a lien on said judgment for attorneys' fees.

The complaint averred that no such judgment was rendered; that the entry in the order-book, claimed to be a judgment, was made in vacation, and without consent of the parties, and was never read or approved by the court, nor signed by the judge, but that the name of the judge was subscribed thereto by an attorney of the court in vacation, and in the absence of the judge. These facts were proved upon the trial, and it was shown that in the cause in which the alleged judgment was claimed to have been rendered, and which was numbered 2283, the following minutes were made on the judge's docket: "No. 2283; 14th day; jury trial; evidence heard; verdict; and answer to interrogatories returned (302); 24th day; judgment on verdict; entry by Adams (361)."

It appeared that Adams made no entry, but afterwards, in vacation, Ferguson prepared an entry of a judgment, and it was placed on the order-book, but being unsatisfactory, another entry of judgment was prepared by somebody and placed on the order-book in vacation, and to this the name of the judge was placed in vacation by another attorney of the court.

In the present case the court had granted a preliminary restraining order inhibiting the enforcement of the execution against all of the Mitchells, but upon the hearing the court dissolved the restraining order as to the said James M. Mitchell, and awarded a perpetual injunction against the enforcement of the execution as to John R. Mitchell and Albert S. Mitchell. The question arising upon this appeal is, ought the alleged judgment to be enforced by execution as against James M. Mitchell?

In Passwater v. Edwards, 44 Ind. 343, this court said: "We may infer that the proper judgment was announced by the court, but not entered upon the order-book by the clerk, and consequently not read and signed during the term, but was, by order of the judge after the term, entered by the clerk upon the order-book. Can the judgment be regarded as valid under such circumstances? In our opinion it can not."

So, in State v. Thistlethwaite, 83 Ind. 317, where the judge had placed his own signature on the order-book leaving sufficient space for the entry of a judgment, and had directed the clerk to enter judgment in the blank space, which the clerk...