Clark v. Duke

59 Miss. 575 | Miss. | 1882

Campbell, C. J.,

delivered the opinion of the court.

• The Circuit Court was justifiable in refusing to permit Mrs. Clark to change her defence, by a denial that she was in possession of the land at the commencement of the action as to her. That would have changed the issue to be tried, and her application should have been made sooner. If her application had been to yield to the demand of the plaintiffs, and make no further defence, the complaint of her counsel that she was denied the privilege of freeing herself from further cost would have been just, but this was not the application she made.

The deeds from W. A. Anderson were filed for record about 12 o’clock M. of Nov. 19. The judgment of-Mary Anderson against him was rendered on the same day, and was afterwards duly enrolled on the judgment roll, so as to be a lien from its date. The question is as to the relative priority of the deeds and the judgment. The testimony shows that the circuit judge had noted on the docket the judgment at an hour earlier than that when the deeds were filed for record. It is not shown when the judgment was entered on the minutes of the court. An effort was made by the appellants to show that it was the custom of the office to enter at night the judgments rendered during the day, but this was not permitted by the court. When was the judgment rendered, and from what moment was it a lien? Was it from the time of its being entered on the minutes, or from the moment when declared by the court, or from the first moment of the day of its rendition or the last ? The judgment was required to be entered on the minutes of the court, ready for the signature of the judge, “ against the next sitting o£ the court,” when they were to be signed by the judge. Code 1857, p. 481, art. 23. The court might not sit again for many days, and might then proceed to business on a subsequent day within the term; and, if the clerk had the minutes drawn up against that sitting, the law would have been complied with. In such case would the judgment contained in such minutes be a lien only from the time of entry in the minutes or of their being signed by the judge ? The law made it a lien “ from the rendition thereof.” Code 1857, p. 524, art. 261. The "time of the rendition of a judgment is when the court signifies its assent to the sentence of the law as the result of proceedings in the case. The judgment must be evidenced by the record, but, when entered according to law, it must be considered to have existed from the time when it was given by the court. That is open to investigation, so as to ascertain the particular time of the day when a judgment was given, and prevent the injustice of affecting innocent third persons with the lien of a judgment which had no existence.

In the absence of evidence of the precise time when a judgment was given, it would be presumed to have been at the earliest hour when, according to the course of the court, it might have been given, because, without evidence, it cannot be said it was not given at such hour, and it devolves on him who claims precedence of the judgment, by reason of a fraction of a day, to maintain his claim by evidence of the time of its rendition. This view sustains the exclusion of the evidence offered to show that the entry of the judgment on the minutes was made at night, and maintains the precedence of the lien of the judgment over the claim of the grantees in the deeds of W. A. Anderson.

It was shown that the plaintiff in the judgment had notice at the time of obtaining it that W. A. Anderson had made the conveyances of the land, but the evidence did not tend to show that the assignee of the judgment had such notice, and it was properly excluded. Duke v. Clark, 58 Miss. 465.

Judgment affirmed.