Culhane Adjustment Co. v. Whorton, File No. 3573

File No. 3573 | S.D. | Jan 22, 1915

WHITING, J.

This is an action brought .to recover an amount claimed to. be due on a money judgment, plaintiff claiming as assignee of such alleged judgment. Trial was bo the court without a jury. The court made findings of fact, upon which it entered conclusions of law and judgment in favor of defendant. From such judgment this appeal was taken, and the only question for our consideration is the sufficiency of the findiñgs to support the conclusions of law and judgment.

This action was brought in October, 1911, and tried in May, 1912. The trial court found that, on November 4, 1891, defendant executed and delivered to a certain corporation a purported ■confession of judgment authorizing the clerk of the circuit court in and for Beadle county to enter up judgment in due and legal form against him; that on November 6, 1891, the then judge of said circuit count indorsed upon said purported confession of judgment an order reciting" that the statement of confession was sufficient, and directing the clerk of said court to enter judgment as provided by statute; that the purported confession of judgment, with such indorsement thereon, was filed in the office of said clerk of court by such clerk, but neither the .purported confession nor the said order indorsed thereon were ever recorded in said office; that, on November 7, 1891, the clerk of said court filed in his office a purported judgment purporting to- be based upon said purported confession of judgment; that such purported judgment upon confession was never recorded in the office of said clerk until May 10, "1912, when the seal- of said' court was attached to such purported judgment, and was then, on said date, recorded in a judgment book in said office; that the purported judgment creditor, on October 4, 1911, executed an assignment of such purported judgment to a party who- afterwards executed an assignment thereof to plaintiff. The court concluded as a matter of law that:

“The said purported judgment * * * was not at the time of the commencement of th-i-s action a valid judgment and that this action cannot be maintained thereon.”

Appellant contends that the failure to record a judgment based upon such confession was, at best, but a mere irregularity, not invalidating the judgment as between the -parties; that, even-if this were not 'true, section 320, Code Civ. Proc., cures the omission to record a judgment upon such confession.

[1] The paper drawn up by the clerk of circuit court, under date of November 7, 1891, and purporting to be a judgment, was, however, not a judgment. It was a nullity. There was no authority for the making -of such a paper. The law then in force (section 5539, Compiled Laws 1887) -directed that upon the filing ■of the confession statement, if the court or judge found such statement sufficient, such court or judge—

“shall indorse thereon an -order that judgment be entered by the clerk, whereupon it may be filed in the office of the clerk, who shall enter in the judgment book a judgment for the amount confessed. * * *”

We thus find a confession statement, an order for judgment, and a paper purporting to be a judgment, but which was in fact executed wholly without authority and was a nullity — a paper which, even if it had been signed by .the court itself, would not have amounted to a judgment. Locke v. Hubbard, 9 S. D. 364, 69 N.W. 588" court="S.D." date_filed="1896-12-11" href="https://app.midpage.ai/document/locke-v-hubbard-6684737?utm_source=webapp" opinion_id="6684737">69 N. W. 588.

[2] Section 320, C. C. P., reads:

“All judgments rendered- by the court and filed in the office of the clerk of such court, prior to the taking effect of -the act from whence this section is taken, being chapter 166 of the Session Laws of 1901, approved February 23d, 1901, although not actually recorded in the judgment book, and all actions -or proceedings under and pursuant to su-ch judgments- taken o-r had after-’ filing, and -before a record' -thereof, -are hereby declared to have the same force and effect as though such judgments had been duly recorded -in (the judgment book.”

Does this section have the effect of making that a judgment which theretofore was but a nullity? Surely not. Prior to- its enactment the court signed that which in form was a judgment, but which in effect amounted to an order for judgment. This section made of such an instrument a judgment. Here the s-ourt had not rendered a judgment, -o-r executed anything in the form of a judgment. There was nothing for said section to ac-t upon.

We do not express any opinion -on -the right of the clerk of said circuit court to- enter up a judgment upon such confession statement years after the order for same was signed; neither do we express any opinion -on the right of the court, upon notice duly, given and as -against all except innocent purchasers and incumbrancers, to -direct the entry of a judgment nun-c pro- tun-c as -of the date of the 'original order for judgment. These are questions not -before us, and- and authorities bearing thereon are not pertinent to the questions presented under the record. One fact is clear: This action was brought -to recover upon an alleged judgment at a time when no such judgment was in existence. This fact supports the conclusion reached by the trial co-u-rt.

The judgment of -the trial court is affirmed.