Williams v. Fredenhagen
| Decision Date | 26 March 1953 |
| Docket Number | Gen. No. 10664 |
| Parties | WILLIAMS v. FREDENHAGEN. |
| Court | United States Appellate Court of Illinois |
Carl O. Bue, Elmhurst, for appellant.
George H. Bunge, Downers Grove, for appellee.
On November 17, 1951 Elizabeth Williams, plaintiff-appellant, filed her affidavit for scire facias against Arthur Fredenhagen, defendant-appellee, to revive a judgment entered November 19, 1931 in a case entitled Martha Thomas, plaintiff vs. Arthur Fredenhagen, defendant, in the Circuit Court of Du Page County, Illinois. Proceedings to revive judgments by scire facias are governed by Ill.Rev.Stat., 1951, chap. 83, par. 24b. The statute provides that judgments in courts of record may be revived by scire facias within twenty years next after the date of such judgment. The clerk of the court, on the date that the affidavit was filed, issued a writ of scire facias which was served on the defendant shortly thereafter. The defendant filed a motion to dismiss the proceedings alleging in substance that the plaintiff had no interest in the judgment as sole heir of Martha Thomas whom he claims was the original judgment creditor. Before there was a hearing on this motion, on April 4, 1952, the plaintiff filed a motion asking leave of court to amend her affidavit and the scire facias issued thereon. The motion alleged that the original judgment sought to be revived was entered of record in the name of Elizabeth Williams, plaintiff herein, and was not entered in the name of Martha Thomas. This motion also asked that an amended writ of scire facias be issued retroactive to the date of the filing of the original affidavit and writ. The trial court denied plaintiff's motion to amend and granted defendant's motion to dismiss. Plaintiff has appealed from this order.
Proceedings to revive a judgment by scire facias are wholly statutory. They are ancillary to the original judgment and generally speaking their purpose is to determine whether or not the judgment has been satisfied in whole or in part, so that if it has not been satisfied, the judgment creditor may sue out an execution and preserve the judgment and its lien. Bank of Edwardsville v. Raffaelle, 381 Ill. 486, 45 N.E.2d 651, 144 A.L.R. 401; Waterbury Nat. Bank v. Reed, 231 Ill. 246, 83 N.E. 188. The judgment debtor is summoned so that he may answer the proceedings in order to revive the judgment.
It follows that there must be in the first instance a valid judgment. If there is no valid judgment, it cannot be revived; if there is a valid judgment, only the judgment creditor or her privities may revive it. Defendant admits that he is the original debtor, but he contends that Elizabeth Williams, the plaintiff, is a stranger to the judgment and should not be permitted to obtain its revival. The nature and character of this purported judgment must be first determined.
It was stipulated by counsel that the following was a complete transcript of the common law docket kept by the clerk of the Circuit Court of Du Page County, Illinois of the proceedings entitled Martha Thomas, plaintiff vs. Arthur Fredenhagen, defendant and of all entries made therein:
To January Term 1931
Du Page County Circuit Court
Common Law General No. 16008
Attorneys Parties Action
----------- ------------- ----------------------------
Carl O. Bue Martha Thomas Trespass On The Case of
v. Promises
Arthur
Fredenhagen
Judge Date Orders of Court
----------- ------------- ----------------------------
Fulton Apr. 28, 1931 Suggestion of death of Mar-
Shepherd Oct. 27, 1931 tha Thomas and Elizabeth
Newhall Nov. 3, 1931 Williams heir at law substi-
Shepherd Nov. 19, 1931 tuted. Order of default
(See Order) Stricken from
Trial Call Upon Stipulation
Jury waived. Cause submit-
ted to Court. Judgment in
sum of $1332.50 and costs
Judgment on findings
It was also stipulated that on the same day as the purported judgment was entered, the judgment and execution docket kept by the clerk showed that an execution was issued on the judgment. The docket states under designation of parties 'Parties, Martha Thomas v. Arthur Fredenhagen.' The execution was never returned. It was further stipulated that the judgment entered in the case of Martha Thomas v. Arthur Fredenhagen in the Circuit Court of Du Page County, case number 16008, was the same judgment that is sought to be revived by scire facias in this proceedings.
It is apparent from the above that no formal judgment was expanded and entered by the clerk from his minutes in the records of his office. The cases of People ex rel. v. Petit, 266 Ill. 628, 107 N.E. 830, People ex rel. Waite v. Bristow, 391 Ill. 101, 62 N.E.2d 545, and Freeport Motor Casualty Co. v. Tharp, 406 Ill. 295, 94 N.E.2d 139 are pertinent to the question presented here. These cases all decide that a judgment at law is in effect as soon as it is pronounced by the court and not from the time it is formally entered in the record by the clerk. In the Petit case, 266 Ill. on page 631, 107 N.E. on page 831, the trial judge's minute clerk entered the following:
The clerk's docket showed:
In the same case the court held that the above minutes and memoranda constituted a judgment on October 17, 1913, the date of the minute-entry, although the formal judgment was not expanded and entered by the clerk until December 4, 1913. The court further held that the judgment of the court did not cease to be a judgment because the clerk failed to enter it of record. It will be observed that the minutes of Judge Petit entered the verdict of the jury and contained no entry of judgment. The clerk's minutes showed the verdict and further said that there was a judgment on findings. This case is quite similar to the instant case and we believe it to be authority that the minutes kept constituted a valid judgment on the day they were made.
In the Freeport case the question as to whether a judgment had been entered was considered and the court states, 406 Ill. on page 300, 94 N.E.2d on page 142:
It appears from the above cases that a judgment at law is in effect the day it is announced by the court and that the clerk of the court may expand the minutes and enter the formal judgment from the minutes of the judge or the clerk. The fact that he does not expand the minutes until after the term of court or within thirty days does not effect the validity of the judgment. It is likewise the law that the judgment may not be expanded from the memory of the judge or the clerk but only from the minutes. Freeport Motor Casualty Co. v. Tharp and People ex rel. v. Petit, supra. If the minutes are sufficient no nunc pro tunc order is needed. People ex rel. Waite v. Bristow and People ex rel. v. Petit, supra.
From an examination of the common law docket and minutes kept by the clerk, there is no question but what the original suit was filed in the name of Martha Thomas, plaintiff, and against Arthur Fredenhagen, defendant. It is also clear from the minutes that the judgment was entered on November 19, 1931. The minutes are continuous and disclose the suggestion of death of Martha Thomas and that Elizabeth Williams was substituted as party plaintiff. The minutes then state that the jury was waived, the cause was submitted to the court, and the judgment was entered in the sum of $1332.50 and costs on the findings of the court. The defendant does not contend that the judgment was not entered against him. If the above minutes had been kept by the judge and no minutes had been kept by the clerk, the clerk would have been justified in entering a formal judgment in favor of Elizabeth Williams and against Arthur Fredenhagen on any day after the judgment was announced by the court. The clerk by necessity is required to keep minutes of what transpires in the court so that he may expand them later upon the records. His minutes are sufficient to expand the judgment in favor of Elizabeth Williams for the amount above stated and against the defendant. The fact that he did not expand the judgment is immaterial as it still may...
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