152 Ill. 42 | Ill. | 1894
delivered the opinion of the court:
The motion to vacate the judgment and set aside the default, having been made at a term of the court subsequent to the term at which the judgment was rendered, was properly overruled. The court had lost jurisdiction to vacate the judgment or set aside the default. Cook v. Wood, 24 Ill. 295; Messervey v. Beckwith, 41 id. 452; McKindley v. Buck, 43 id. 488; Windett v. Hamilton, 52 id. 180 ; Knox v. Winsted, Savings Bank, 57 id. 330; Mason v. McNamara, id. 274; Fix v. Quinn, 75 id. 232; Coursen v. Hixon, 78 id. 339; Becker v. Sauter, 89 id. 596; Constantine v. Wells, 83 id. 192.
This was not an attempt to amend the record at a subsequent term of court, but an attempt to vacate and set it aside upon grounds dehors the record, and not appearing. by any minute kept by the judge, or stenographer’s notes of what was heard or considered by the judge at the time of the, entry of. the default and judgment, showing that a mistake had been made in the entry of the judgment. It is rather addressed to the discretion of the court, upon the ground that there was not sufficient evidence before the court to warrant the entry of the judgment, and because of the fact that the default had been taken without notice to the defendant. There is, perhaps, ho rule better settled in this State than that in the cases last cited, that when a term of court closes at which a judgment has been rendered, the court has lost jurisdiction, and its power over the judgment is at an end. True, as already intimated, the record may, at a subsequent term of the same court, be amended so as to show what the judgment of the court in fact was, if there be a memorial paper or minute to amend by. But nothing of the kind is pretended here. It is not contended that the record does not correctly show the order and determination of the court, but it is sought to attack the judgment upon the ground that the court incorrectly determined in ordering the default and in entering the judgment. The cause was necessarily continued on the docket, after the rendition of the conditional judgment against the garnishee, for further proceedings against it upon due return of service of scire facias. ' (Rev. Stat. chap. 62, sec. 8.) But the judgment against the defendant in attachment was a final judgment, and the power of the court over it was exhausted at the close of the September term, 1891, of the circuit court. No further attention need be paid to the appeal from the order overruling the motion to vacate the judgment.
The writ of error was sued out to reverse the judgment rendered October 17, 1891, the last day of the September term of that court. The record contains no bill of exceptions relating to or showing the facts precedent to the rendition of that judgment. The real question, therefore, presented for consideration is, whether the record, as presented, discloses error fatal to the judgment. It becomes of first importance to determine what constitutes the record, and how far the regularity of the proceedings may be questioned.
It is first insisted that tlie appearance of the defendant, entered by the paper filed September 23, 1891, could not be shown except by bill of exceptions showing the filing of said paper, and, therefore, that the record fails to show that the court had jurisdiction to render personal judgment against the defendant. If the record shows an entry of personal appearance in fact, it follows, under the statute, that a judgment in personam was properly entered; otherwise not.
In Harding v. Larkin et al. 41 Ill. 413, it was said: ‘ ‘The papers of a cause, when filed under our statute, become a part of the record, as fully as if copied into the record book of the court. That act does not lend to them any additional force as parts of the record, nor are they generally even copied into the record book.” Again, in Stevison v. Earnest, 80 Ill. 513: “Our practice with regard to the making of records of judgments is different from that which obtained at common law. ‘ The papers of a cause, when filed, under our statute, become a part of the record as fully as if copied into the record book of the court.’ (Harding v. Larkin et al. 41 Ill. 423.) ‘And transcripts of the record are made by copying the files and the orders of court as entered of record by the clerk.’ Schirmer v. The People, 33 Ill. 282.” In VanCott v. Sprague, 5 Bradw. 99, the late Mr. Justice McAllister said: “The record proper in a suit at law consists of the process by which the defendant is brought into court, including the sheriff’s return, the declaration, pleas, demurrer, if there is any; also any judgment upon demurrer, or other judgment, interlocutory or final.”
To constitute a complete record it must be shown that the court had jurisdiction of the subject matter, jurisdiction of the .person of the defendant, and the determination of the cause by the court. Hence the pleadings, the process and return of service, or its equivalent, by which the court acquired jurisdiction of the person, and orders of the court, are necessarily included in a proper record. A record thus made imports verity. The judgment has for its basis those essential prerequisites without which no valid judgment can be rendered, and it will be presumed, in the absence of a bill of exceptions showing the contrary, that the court proceeded according to law, and upon sufficient facts to warrant its entry.
Without pausing to determine what élse may be included within the record proper, it is clear that if the court may acquire jurisdiction of the person of the defendant by the entry of appearance, such entry, standing in lieu of process, is a necessary part of the record. Moreover, the defendant appeared, without limitation of his appearance, and moved to rule the plaintiff to file a more specific bill of particulars. This was an entry of a general appearance, and the defendant could not afterwards object that he was not personally in court by the service of summons. As said in Dart v. Hercules, 34 Ill. 395 : “The only purpose of original process is to bring parties into court, and when the defendant enters his appearance the object is accomplished, and it is not material whether the summons issued in the case was defective or not, or even whether it was ever issued. By an appearance to the action the court acquires jurisdiction of the person of the defendant as fully as it can be had by summons with proper service. When he appears in the case it is an admission that he has been duly served or that he waives service, and all the proceedings of the court in the case are as valid and binding as if the process was regular and the service unobjectionable.” And so in Miles v. Goodwin, 35 Ill. 53, it is said : 1 ‘It is insisted that there are such defects in the writ, and its service on Bradford S. Miles, as render the judgment erroneous. We deem it unnecessary to examine these various objections, as they were cured, if they ever existed, by his appearance to the action. After a default was entered he appeared and moved the court to set aside the default, which motion was allowed. He then entered a motion to dismiss the suit, which was overruled. By making these motions he fully appeared to the action, and if so, it could make no difference whether there was a defective writ or defective service, as his being in court rendered a writ and service unnecessary. If a defendant enter his appearance to a declaration, all attorneys know that a judgment is binding, although a writ was never issued or service had. The object, and only object, of the writ is to bring the party into court, and if he voluntarily enters his appearance the court has complete jurisdiction of his person. ’ ’ Many other cases to the same effect are to be found. They all proceed upon the theory that an appearance is waiver of the service of process.
The more important question perhaps is as to the effect of the entry of appearance during the term, as was done in this case. It seems to be insisted that the mere entry of appearance is to be treated in the same way as the service of process, and if the entry of appearance is not at such time that the plaintiff could be compelled by the defendant to proceed in the cause, the defendant would not be required to plead to the declaration. (See Little v. Carlisle, 2 Scam. 375; Hoes v. Van Alstyne, 16 Ill. 384.) We do not find it necessary to determine that question in this case, for the reason that the defendant not only made general entry of appearance, but took affirmative action to compel the plaintiff to take steps in the cause without any limitation of his appearance. The right of the parties to force each other to a trial of the cause, or to take any affirmative action therein, must be reciprocal, and if the defendant placed himself in condition to require the plaintiff to proceed, he could not do so without giving the right to the plaintiff to proceed. If the defendant, upon entering his appearance, pleads to the action, or takes such steps in the cause as require the plaintiff to proceed, a present appearance has been entered for all purposes, and the appearance is then to be deemed an appearance for the purposes of a trial. In the case at bar, instead of confining himself to a mere entry of appearance, the defendant moved the court for a rule on the plaintiff to file a more specific bill of particulars and a bond for costs, without limiting his appearance for that purpose. He could not require the court to proceed at that term, and compel the plaintiff to take affirmative action in the cause, without submitting to the jurisdiction of the court to compel such action. If he sought to compel the plaintiff to proceed, it must be conclusively presumed, the rights being reciprocal, that he intended to subject himself to a trial of the cause.
The court, on motion of the defendant, made September 23, 1891, entered a rule upon the plaintiff to file a bill of particulars within ten days. A bill of particulars filed two days later,—that is, September 25,—is contained in the transcript, and, being filed with the declaration, or as showing the items of plaintiff’s cause of action declared for, is properly a part of the record. No further step seems to have been taken in the case from the 23d of September until October 17, when the default and judgment were entered. It is now insisted that the court erred in entering the default without notice to the defendant of compliance with the rule to file the bill of particulars, etc. This objection is, we think, without merit. If the bill of particulars had not been filed in compliance with the rule, it would have been entirely competent for the defendant to have appeared, and, by the further order of the court, required compliance with it, or taken such further steps as would have been proper. A rule had been entered requiring the filing of the bill of particulars within ten days from the entry of the rule, and for that time the defendant might have relied upon receiving notice of further proceeding in the case, but upon the expiration of that time he was bound to know that the cause stood for trial, and, if no plea was filed, that default might be entered. No rule of court is shown, even by the bill of exceptions preserving the evidence on the motion to vacate the judgment, requiring notice in such cases. It has been so repeatedly held that a party being in court is bound to take notice of the steps taken in his cause, that we do not deem the citation of authorities necessary.
There having been an entry of appearance in the action, the court was authorized to render a personal judgment, and no discussion of the sufficiency of. the service by publication is required.
Finding no' substantial error in the record, the judgment is affirmed.
Judgment affirmed.
Mr. Justice Craig, dissenting.
