149 Ky. 455 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
J. D. Farris and I. W. Blair brought an action in the Knox Circuit Court against the Interstate Petroleum Company and others to recover on a promissory note in the sum of $500. An attachment was prayed for, issued and levied on certain property belonging to the defendants. A forthcoming bond was executed by the defendants, with John Gr. Matthews as surety, to the
This action was brought by plaintiffs, J. D. Parris and I. W. Blair, against defendant, John Gr. Matthews, to recover on the bond. The petition and amended petition set forth the former action, the character thereof, the fact that defendants were properly before the court, and that an attachment issued and was levied on certain described property, and the further fact that judgment for the amount sued for and sustaining the attachment was obtained, which judgment was recorded in the office of the Knox Circuit Clerk in Order Book P, page 596. A copy of the judgment, though not certified to or attested, was filed with the petition. The defendant, Matthews, filed an answer, in the first paragraph of which he denied in terms each of the allegations of the petition and amended petition, including the allegation that a judgment had been rendered in favor of plaintiffs, sustaining the attachment and adjudging a recové ery of the amount sued for. The second paragraph of his answer contains the following allegation:
“The defendant, John Gr. Matthews, for further answer and defense, states that there is a judgment of this court of record, Order Book P, page 596, entered by the then Circuit Judge, Hon. H. C. Paulkner, on January 5, 1907, copy of which is filed herewith and marked .‘Exhibit A’ for identification, which judgment requires that the master commissioner take charge of, sell and subject to the satisfaction of the .claims of the plaintiffs, the property taken under the attachment and sued out by them at the time of the institution of their suit, to-wit: on January 5, 1905.”
, • 'The answer then goes on to allege that said property was then and had since been in the jurisdiction and control of the officers of the court, but that by delay and lack of care ánd protection, and lapse of time, without any fault or act on the part of the defendant Matthews, the property had depreciated in value, and had been wasted and carried away,’.etc.
On a trial, the- clerk of the Knox Circuit Court introiduced" in evidence the order book containing the alleged •judgment. It developed- that the .orders, for the day
It is well settled that it is essential to the validity of a judgment that it shall be entered upon the order book of the court, and signed by a judge, and that an ■unsigned judgment is no judgment at all. Commonwealth v. Chambers, 1 J. J. Marsh., 108; Raymond, &c. v. Smith, 1. Met., 65; Johnson v. Commonwealth, 80 Ky., 377; Ewell, &c. v. Jackson, &e., 129 Ky., 214. It is also well settled that an action on a forthcoming bond,' executed pursuant to section 214, Civil Code, cannot' be maintained in the absence of a judgment sustaining the attachment. Edwards-Barnard Co. v. Pflanz, 115 Ky., 393; 4 Cyc., 690. But it is insisted that the allegation in the second .paragraph of appellee’s answer to the •effect that there was a judgment of the court of record in Order Book F, page 596, which directed that the master commissioner take charge of and subject to the satisfaction of the claims of plaintiffs the property taken •under the attachment, constituted an admission' of the existence of the judgment sustaining the attachment, .and therefore dispensed with the necessity of proof thereof, and estopped appellee from claiming that the judgment was not signed and therefore void.' In'view of the fact, however, that the first paragraph of ' appellee’s answer denied that the judgment sustaining* the attachment had been rendered, and as the judgment sued on does not direct that the master commissioner
But it is claimed that the trial court erred to the prejudice of appellants by not signing the judgment himself, or postponing the case in order to give the judge who presided when the judgment was rendered an opportunity to sign the orders including the judgment. Inasmuch, however, as the action was brought without a judgment sustaining the attachment, and such a judgment was a condition precedent'to the right to maintain the action, the presiding judge could not then, by any act of his, give vitality to the suit which had been prematurely brought; and the suit being prematurely brought, it was proper that it be dismissed.
Section 977, Kentucky Statutes, provides as follows:
“Upon the death of a circuit judge, or when from any cause the office is vacant, or when the judge is absent, his successor, no matter how chosen, may sign any orders of court left unsigned by his predecessor, the same as his predecessor might have done.”
This statute was enacted for the purpose of enabling a judge’s successor, no matter how chosen, to sign orders which the presiding judge may for any reason have failed to sign. The statute should be liberally construed to carry out the purpose of the Legislature. There can be no doubt that it applies to a case like this. Whether Judge Faulkner, the presiding judge, failed to sign the orders because he was absent, or merely forgot to do so, his successor in office may now sign the orders, and it is his duty to do so.
In view of the fact that the action was dismissed because it was brought in the absence of a judgment sustaining the attachment, the action was prematurely brought, and the order below dismissing the action will be treated as an order dismissing without prejudice, and will not, therefore, bar another action on the bond, when the orders on the order book shall have been signed by the present judge.
Judgment affirmed.