Shumake v. Shumake

• Decision Date: 31 January 1910
• Citation: 107 P. 42,17 Idaho 649
• Parties: EVA B. SHUMAKE, Appellant, v. WILEY T. SHUMAKE, and ELBERT DE BUSK, Respondents
• Court: Idaho Supreme Court

107 P. 42

17 Idaho 649

EVA B. SHUMAKE, Appellant, v. WILEY T. SHUMAKE, and ELBERT DE BUSK, Respondents

Supreme Court of Idaho

January 31, 1910

APPEAL-DISMISSAL-APPEALABLE ORDER-ORDER VACATING JUDGMENT-BILL OF EXCEPTIONS-AMENDMENTS-ENGROSSMENT-ATTACHMENT-GARNISHMENT-JUDGMENT-JURISDICTION OF CLERK TO ENTER-VACATING-TIME OF APPLICATION.

1. Rev Codes, sec. 4807, subd. 3, provides that an appeal may be taken to the supreme court from a district court "from any special order made after final judgment." Held, that this provision is broad enough to authorize an appeal from an order made after final judgment, vacating and setting aside such judgment.

2. Where amendments are proposed to a bill of exceptions and request is made that such amendments be added thereto without indicating any particular place in which the same shall be inserted in the proposed bill, and it cannot be ascertained from the amendments proposed as to where they shall be inserted, such proposed bill of exceptions and the amendments need not be engrossed after settlement and allowance by the judge, but it is sufficient to incorporate them in the record showing the proposed bill and the amendments added thereto.

3. The default provided for in Rev. Codes, sec. 4310c, is a default for want of an answer, and does not mean a default judgment and neither that section nor sec. 4360 of the Rev. Codes authorizes or empowers the clerk to enter a default judgment against the garnishee for failure to answer interrogatories submitted, as the mere failure of the garnishee to answer the interrogatories does not prove that he is indebted to the defendant in any specific sum, and the case must be heard before the court or judge and proof made showing the indebtedness of the garnishee to the defendant.

4. The provisions of sec. 4229, Rev. Codes, which requires application for relief from a judgment to be made within six months after the adjournment of the term, do not apply to judgments and orders which are nullities and void from the beginning, and a motion to set aside and vacate a void judgment may be made at any time.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. Edward A. Walters, Judge.

Motion was made to vacate and set aside a judgment entered by the clerk against a garnishee. Motion sustained. Plaintiff appeals from the order. Affirmed.

Judgment affirmed, Costs awarded to respondent.

F. A. Hutto, for Appellant.

This was an action upon a judgment; therefore, one "arising upon contract for the recovery of money or damages only," so the clerk could do nothing, under the law, but enter judgment as he did. (Rev. Codes, sec. 4360.)

This statute is taken directly from California, and the supreme court of that state holds that a "judgment is a contract, in the highest sense of the term, and as an obligation it possesses a force superior to that of a specially or simple contract." (Wallace v. Eldredge, 27 Cal. 498; Bond v. Pacheco, 30 Cal. 530; Prov. Tool Co. v. Prader, 32 Cal. 634, 91 Am. Dec. 598; Kelly v. Van Austin, 17 Cal. 564; 23 Cyc. 758, 766; 30 Cent. Dig. 335, 727.)

The clerk only acts as a ministerial officer, not as a judge or court; so when the complaint authorized it (the complaint in this case being a judgment), and the service complete, as it was Dec. 30, 1907, he is directed to enter default and judgment on these facts. (Willson v. Cleveland, 30 Cal. 192; Wallace v. Eldredge, supra; Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. 52, 24 P. 1089; Wharton v. Harlan, 68 Cal. 422, 9 P. 727; Stearns v. Aguirre, 7 Cal. 443; Glidden v. Packard, 28 Cal. 651.)

M. J. Sweeley, for Respondents.

An order vacating a judgment is not a final order and is not appealable. (Hibbard etc. Co. v. De Lanty, 20 Wash. 539, 56 P. 34; Sengfelder v. Powell, 40 Wash. 686, 82 P. 931; Gray v. Haish, 2 Kan. App. 145, 43 P. 293; Thomas v. Thomas, 10 Colo. App. 170, 50 P. 211; State v. Langan, 29 Nev. 459, 91 P. 737; Murphy's Estate, 128 Cal. 339, 60 P. 930; Rauer's Law etc. v. Standley, 3 Cal.App. 44, 84 P. 214.)

Unless the action is upon a contract for the recovery of money or damages only, the clerk has no power to enter judgment. (Parke v. Wardner, 2 Idaho 285, 13 P. 172; Rev. Codes, sec. 4360.)

Without constitutional or statutory authority, a clerk of a court cannot exercise judicial functions. (16 Am. & Eng. Ency. of Law, 2d ed., 135.) He must conform strictly to the provisions of the statute or his proceedings will be without any binding force. (Kelly v. Van Austin, 17 Cal. 564.) Where the clerk has no authority to enter a judgment, the judgment is void. (Lacoste v. Eastland, 117 Cal. 673, 49 P. 1046; Stearns v. Aguirre, 7 Cal. 449; Kelly v. Van Austin, 17 Cal. 564; Junkans v. Bergin, 64 Cal. 203, 30 P. 627.)

The six months' limit fixed by sec. 4229, Rev. Codes, does not apply to a proceeding attacking a judgment void on its face as is the one in question. (Kerns v. Morgan, 11 Idaho 572, 83 P. 954; Kerns v. McAulay, 8 Idaho 558, 69 P. 539.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

On Dec. 28, 1907, Eva B. Shumake recovered a judgment against Wiley T. Shumake in the district court of Twin Falls county, this state. On Dec. 30th of the same year execution was issued upon this judgment and placed in the hands of the sheriff of said county, and upon the same day counsel for Eva B. Shumake served upon the sheriff a written notice notifying said sheriff that one Elbert De Busk of said county was indebted to the defendant, Wiley T. Shumake, in the sum of $ 400 and requested the sheriff to attach said debt, and at the same time furnished said sheriff certain interrogatories to be answered by Elbert De Busk. This execution was returned by the sheriff indorsed as follows: "Received this writ on this 30th day of December, 1907, and executed the same in my county, by delivering to Elbert De Busk, on the 30th day of December, 1907, a full, true, and correct copy thereof, together with a full, true and complete copy of the interrogatories hereto attached. G. D. Aiken, Sheriff. By C. W. Dyer, Deputy." Attached to the interrogatories was the following notice:

"To Elbert De Busk, Garnishee:

"You are hereby directed to answer the following interrogatories, in reference to your indebtedness to the above named defendant, Wiley T. Shumake, and file the same with the clerk of the above named court, as by law required.

"F. A. HUTTO,

"Attorney for Eva B. Shumake."

And also a certificate made by the sheriff as follows: "The above and foregoing interrogatories were received by me, at the same time and place that I received the execution herein, and you are hereby directed to pay over to the said Wiley T. Shumake no money or property in your hands, belonging to the said Shumake, but to make full and true answers to the above and foregoing questions as by law directed, and file the same in the office of the clerk of the above-named district court. G. D. Aiken, Sheriff of said County. By C. W. Dyer, Deputy." The return of the sheriff appears to have been filed Dec. 30, 1907. On Jan. 11, 1908, another execution was issued upon said judgment addressed to the sheriff of said county and attached to which is the notice signed by counsel for Eva B. Shumake as follows:

"To the Sheriff of said County or Other Proper Person Serving This Writ:

"You are hereby notified that one Elbert De Busk and Harvy Earp, of Buhl, Twin Falls County, Idaho, is indebted to the above named defendant, Wiley T. Shumake.

"F. A. HUTTO,

"Attorney for Plaintiff, Eva B. Shumake."

This writ is returned as served by one J. H. Schooler, who swears in effect that he is a citizen, resident of the state and county, over twenty-one years of age, and has no interest in the cause of action, and, "I did on the 11th day of January, 1908, deliver to Elbert De Busk and Harvy Earp, personally, a full, true and complete copy of the above and foregoing execution, together with a full, true and correct copy of the annexed interrogatories, numbered from 1 to 10, inclusive.

"I delivered said copies to said Elbert De Busk and Harvy Earp in the Town of Buhl, Twin Falls County and State of Idaho.

"J. H. SCHOOLER.

"Subscribed and sworn to before me on this 11th day of January, 1908.

"F. A. HUTTO,

"Notary Public."

This return was filed Jan. 17, 1908, at 4:30 P. M., and on the same day Eva B. Shumake by her attorney requested the clerk of said court to enter the default of Elbert De Busk because of his failure to answer the interrogatories, and for judgment for the sum of $ 82.00; and on the same day the clerk entered the following judgment:

"Whereas on the 28th day of December, 1907, there was a judgment rendered against the above-named defendant, Wiley T. Shumake, in favor of the above-named defendant (plaintiff), Eva B. Shumake, in the district court of the fourth judicial district of the state of Idaho, sitting in and for the county of Twin Falls, in the sum of seventy-two and 85/100 dollars, as appears of record in this office, and

"Whereas, there is accrued costs on said judgment, in the further sum of nine and 15/100 dollars, making the total sum of, to this date, the sum of eighty-two dollars.

"Whereas, there was issued out of this court, on the 11th day of January, 1908, an execution on said judgment, to the sheriff of said county, and it appearing to me that on the 11th day of January, 1908, there was served upon the above-named garnishee, Elbert De Busk, in the county of Twin Falls and state of Idaho, a full, true and complete copy of the interrogatories attached to said execution and that the same was there and then personally served upon said De Busk as provided by law, and

"Whereas,...