Williams v. M'Grade

• Decision Date: 01 January 1868
• Citation: 13 Minn. 39
• Parties: MARY D. WILLIAMS and Husband v. FRANK McGRADE and others.
• Court: Minnesota Supreme Court

13 Minn. 39

MARY D. WILLIAMS and Husband

v. FRANK McGRADE and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Carver county, denying a new trial.

Plaintiff had a verdict on the trial below.

L. M. & J. H. Brown, for appellants.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Chatfield & Irwin, for respondents.

McMILLAN, J.

The complaint alleges the wrongful taking of certain personal property of the plaintiff, Mary D. Williams, by the defendants, etc.

The defendants all appear by the same attorneys, who sign one answer as "Attorneys for Defendants," in which all the defendants, except McGrade and Cressey, deny each and every allegation in the complaint.

The defendant McGrade alleges a prior action pending, etc., and the defendant Cressey alleges that he took the property in question as the property of Henry H. Williams, as deputy sheriff, by virtue of certain executions against said Williams, issued upon three certain judgments specified in the answer, etc.

The reply puts in issue the new matters pleaded by McGrade and Cressey respectively. The trial resulted in a verdict for the defendant McGrade, and for the plaintiffs as against the other defendants. On the trial of the cause the defendants' counsel offered in evidence three transcripts of judgments against the plaintiff Henry H. Williams, and also three transcripts of the judgment docket, showing the docketing of the judgment set forth in the paper book. To the admission of each of these transcripts the counsel for the plaintiffs objected, on the ground that the same were not competent evidence to prove the judgments in the absence of the judgment rolls. The court overruled the objection, and admitted the transcripts, "not as sufficient evidence of said judgments, in the absence of the judgment rolls, but as parts of the record of said judgments."

The defendants then offered in evidence each of the three executions, with the indorsements thereon, issued upon said judgments. These were objected to, for the reason that no sufficient proof of judgments had been introduced to authorize the issuance of either execution; which objection was sustained by the court, and the defendant excepted.

As the defendant Cressey justified, as deputy sheriff, the taking of the goods in question as the property of Henry H. Williams, under execution against him, in this action, brought by a third party, who claims the goods, if a fraudulent assignment or colorable sale of the property from the judgment debtor to the plaintiff is relied on, it is incumbent on him to prove a writ and judgment upon which it is based. 1 Stark. Ev. 329; 2 Stark. Ev. pt. 2, p. 1030, and authorities cited; Martyn v. Podger, 5 Burr. 2631; 2 Greenl. Ev. § 629.

But it is only proof of the judgment itself, as a fact, that is required, and not in any degree the matters upon which it is founded; for this purpose the judgment is always admissible. 1 Stark. Ev. 252-4; 1 Greenl. Ev. §§ 527, 538-9. A judgment is the sentence of the law pronounced by the court upon the matter contained in the record, (3 Bl. 395,) and this is all that is essential to its existence; its incidents may be enlarged or qualified by statute without affecting its essence.

Our statute provides, in relation to judgments: "The judgment shall be entered in the judgment book, and specify clearly the relief granted or other determination of the action." Gen. St. c. 66, § 250, p. 485; Brown v. Hathaway, 10 Minn. 303, (Gil. 238.) Thus, it appears, a separate book is required, in which judgments are to be entered. When thus entered the judgment is complete; it may not have all the incidents which, under other circumstances, might attach to it under our statute, but it determines the rights of the parties in the action. Gilmartin v. Smith, 4 Sandf. S. C. § 686. Until docketed it is not a lien on the real estate of the judgment debtor. Gen. St. c. 66, § 254. But this is not essential to the existence of the judgment. Id. § 251. We think it is evident that whatever may be the effect of filing the judgment roll, it was not intended that it should affect the existence of the judgment, for one of the papers required by the statute to constitute the judgment roll is "a copy of the judgment." Id. § 252, subd. 1. If a copy of the judgment constitutes a part of the judgment roll, the original must exist.

To prove, as a fact, a domestic judgment of a superior court, it is not necessary, in the first instance, to establish any of the preliminary proceedings upon which the judgment depends, the presumption prima facie being that the proceedings are regular. Rathbone v. Rathbone, 10 Pick. 1; Bloom v. Burdick, 1 Hill. 139; Hatcher v. Rocheleau, 18 N. Y. 86; 2 Stark. Ev. pt. 2, pp. 935-6.

Under the English practice, when judgment was signed, it appears to have been entered in a judgment book; but this book seems to have been a mere memorandum or minute book, containing a memorandum of the judgment, not the judgment itself, and was not evidence of the judgment. 1 Tidd, Pr. (3d Am. from 9th Lon. Ed.) 556; 2 Id. 943; Godefroy v. Jay, 5 Moore & P. 284. Although, under that practice, the party may take out execution immediately after the judgment is signed by the proper officer, yet it is not a perfect and permanent record till the roll is brought into court and filed. 2 Tidd, Pr. 943.

The filing of the roll, therefore, was essential to the record of the judgment. And in New York it was held by the early decisions that an execution could not issue until the judgment roll was signed and filed with the clerk. Barrie v. Dana, 20 Johns. 308. And subsequently it was enacted by statute that "no judgment shall be deemed valid so as to authorize any proceedings thereon until the record thereof shall have been signed and filed." 2 Rev. St. (3d Ed.) p. 456, § 14; 2 N. Y. St. at Large, p. 373, § 11. Under these provisions it would seem that the judgment roll was the only authentic record of the judgment. Townsend v. Wesson, 4 Duer, 350; Walters v. Sykes, 22 Wend. 568. But in our state we have no such provision. By our statute the entry of the judgment in the judgment book precedes the making and filing of the roll, and a copy of the judgment, as recorded in the judgment book, is to constitute a portion of the roll. The judgment, however, is complete when entered in the judgment book. Lentilhon v. City of New York, 3 Sandf. 722.

The entry of the judgment in the judgment book would seem to be the formal and permanent entry of the judgment upon the record, and holds the same relation to the proceedings under our laws that the entry of judgment in the judgment roll held under the English and New York practice. It is the original record, and therefore evidence of the judgment. If so, a transcript of the record is made competent evidence by statute. Gen. St. c. 73, § 66, p. 528.

How far the omission to file a judgment roll would in any case affect the regularity of the docketing of the judgment and the issuing of an execution we need not consider.

Under our statute the making and filing the judgment roll is a mere clerical duty imposed on the clerk of the court, to be performed immediately after entering the judgment, (Gen. St. c. 66, § 252,) for which neither the party nor his attorney are responsible, (Heinemann v. Waterbury, 5 Bosw. 690;) and it seems to us the omission of this duty cannot render the subsequent proceedings absolutely void. Renouil v. Harris, 2 Sandf. 641; Cook v. Dickerson, 686. See, also, Sears v. Burnham, 17 N. Y. 446. As, therefore, it appears that the judgment was...