Winn v. McCraney

• Citation: 46 So. 854,156 Ala. 630
• Parties: WINN ET AL. v. MCCRANEY ET AL.
• Decision Date: 21 May 1908
• Court: Supreme Court of Alabama

46 So. 854

156 Ala. 630

WINN ET AL. v. MCCRANEY ET AL.

Supreme Court of Alabama

May 21, 1908

Appeal from Circuit Court, Barbour County; A. A. Evans, Judge.

Action by James J. Winn, Jr., and others, against M. J. McCraney and others on an official bond. Judgment for defendants, and plaintiffs appeal. Affirmed.

G. L Comer and G. W. Winn, for appellants.

Peach &amp Thomas, for appellees.

DENSON J.

The undisputed facts shown by the record may be summarized as follows: The plaintiffs (appellants here) brought an action in the circuit court of Barbour county against W. M McPherson, That cause was pending on the trial docket at the November term, 1903 (a two-week term), of said court, and was set by the clerk for trial on Tuesday, November 3, 1903; that being the second day of the term. At the request of the plaintiffs' attorney the cause was passed until the last day of the term, and the judge made a pencil memorandum of this fact on the trial docket, opposite the statement of the cause. The civil docket was concluded about the middle of the first week, and the clerk entered in the minutes of the court all judgments that had been rendered in civil causes, and the civil minutes were carried to the clerk's office together with the trial docket. The second week of the term was devoted to the trial and disposition of criminal causes. All criminal causes were disposed of by the middle of that week, and the jurors were discharged; but the court was kept open informally until it was adjourned on Saturday, the 14th of November, late in the afternoon. Late Saturday afternoon, two attorneys, interested in a motion for a new trial that was pending, met the presiding judge on the street and requested him to go and hear the motion. The judge and attorneys repaired to the clerk's office on the first floor of the courthouse, the courtroom being on the second floor, and proceeded to hear and dispose of the motion. At the conclusion of the hearing the attorney for the plaintiffs in the cause which had been passed placed the civil trial docket before the judge and asked him for a judgment by default, for plaintiffs in the cause, for the sum of $227. The judge, in response to the request, made the following memorandum on the docket, opposite the statement of the cause: "Nov. 14, 1903. Judgment by default for plaintiffs for $227; waiver of exemptions as to personal property"--and immediately after making the entry on the docket the judge signed the minutes adjourning the court sine die. There was no proclamation that the court was in session, nor was any notice whatever given that the court would be, or had been, convened in the clerk's office, or elsewhere, that afternoon. The sheriff and clerk were not present, and no notice had been given either of them that the court would be convened in the clerk's office, or that the judge would make any entries in causes; nor was an inquiry made for the clerk. It is further shown that all judgments rendered in causes, civil and criminal, during the term, had been entered in the minutes of the court at the time the memorandum was made by the judge that afternoon. The clerk was not notified that the entry had been made in the cause; nor was he aware that the entry had been made, until on the 28th day of December, 1903, when the plaintiff's attorney called for an execution on the judgment, and notified the clerk of the entry made in the cause by the judge. The clerk then wrote in the minutes a judgment in conformity with the entry on the trial docket and issued execution thereon; but the defendant had prior to that time disposed of all his property, and the plaintiffs lost their debt.

The present suit was brought by the plaintiffs against the clerk and the surety on his official bond for breaches of the conditions of the bond, in that the clerk failed to enter the judgment rendered for the plaintiffs against McPherson in the minutes of the court, and in another count for that the clerk failed to issue execution on the judgment within 15 days after it was rendered. It is the subject of express decision by this court that entries of the kind made by the judge in the cause against McPherson on the 14th day of November, 1903, are merely docket memoranda of the presiding judge, intended, and operating, only as directions to the clerk as to what judgment should be entered on the records of the court, and that the trial docket is not a record. Morgan v. Flexner, 105 Ala. 356, 16 So. 716; Brightman v. Meriwether, 121 Ala. 602, 25 So. 994; Baker v. Swift & Son, 87 Ala. 530, 6 So. 153. This being true, it must follow that no execution could lawfully have been issued on such memoranda, the memoranda did not form the proper foundation for an execution, and consequently no breach of the bond could be predicated on the fact that execution was not issued thereon. Authorities supra.

The second count of the amended complaint, in respect to the rendition of judgment (omitting the statement of the term of the court), avers that "plaintiffs...