Freeport Motor Casualty Co. v. TharpFreeport Motor Casualty Co. v. Tharp
delivered the opinion of the court:
Thе sole question presented by this appeal is the timeliness of an appeal taken to the Appellate Court from a declaratory judgment rendered by the circuit court of Clay County in favor of the plaintiff. The trial cоurt held for the plaintiff and defendants appealed to the Appellate Court, Fourth District, which court overruled a motion to dismiss, decided the case on the merits in favor of defendants and reversed and remanded the same with directions. We granted leave to appeal.
The case before the trial court involved the construction of an insurance policy and a declaratory judgment thereon was sought and awarded.
A written judgment order, dated June 15, 1948, was sent to the clerk by the trial judge, accompanied by a letter, which read as follows: “Herewith a declaratory judgment order which you may file in the above entitled cause and the next day there is court in Louisvillе the appropriate docket entries can be made.” Louisville is the county seat of Clay County, where the proceedings were pending. This order and letter were' purportedly received by the clerk on June 16, 1948, and both were placed in the files of the case, but no docket entry was made on that date. On June 24, 1948, the next court day, the following entry was made by another judge of the circuit, vis: “Now on the 24th day of June, 1948. Declaratory Judgment Order signed and аpproved by Judge F. R. Dove. This is filed. Hon. Ward P. Holt, Judge presiding.” It is also recited in the record before us that this notation together with the declaratory judgment order “were had and entered of record in said cause” on June 24, 1948, being the sаme day the above docket entry was noted.
The defendants filed notice of appeal in the trial court on September 22, 1948, within 90 days from the “entry” on June 24 and more than the statutory time allowed from
The sole question, then, is the timeliness of the appeal. Section 76 of the Civil Practice Act provides in part that “No appeal shall be taken to the Supreme or Appellate Court after the expiration of ninety days from the entry of the order, decree, judgment or other determination complained of.” This rеquirement is jurisdictional and mandatory and the statute must be strictly complied with. Johnson v. County of Cook,
The statute pertaining to clerks of courts provides “They shall enter of record all judgments, decrees and orders of their respеctive courts, as soon after the rendition or making thereof as practicable.” Ill. Rev. Stat., 1947, chap. 25, par. 14.
In the absence of a specific statute, there is a sharp conflict of authority as to when a judgment is “entered.” We do not find that the unusual aspects presented here have been precisely presented to this court for consideration. Under our practice there is a distinction between a judgment at law and a decree in chancery. In chancery the whole matter is completely under the control of the chancellor until the final decree has been filed or recorded. Until that time, he may alter, amend, change, or even disregаrd all he has said in his minutes; he may reverse his
It is equally clear that a judgment exists in this State from the time the court acts even though it may not have been formally written on the rеcord by the clerk. (People ex rel. Holbrook v. Petit,
This is a suit for a declaratory judgment, which was unknown to thе common law and is a relatively new innovation in the law. It is neither legal nor equitable but is sui generis. (Great Northern Life Insurance Co. v. Vince, 118 Fed. 2d 232; certiorari denied
A judgment аt law becomes effective as soon as it is pronounced by the court. In the nature of things, a judgment must be rendered before it can be entered. It dates from the time it was pronounced and not from the time it was entered upоn the record by the clerk. (People ex rel. McDonough v. Jarecki,
When, then, was this judgment rendered? Although it is clear that the minutes, memorаnda, or docket entries made, even by the judge upon his own docket, do not form a part of the official records of the court, yet they do afford a proper means of amending the record and assisting the clerk in accurately making up the record. (McCormick v. Wheeler, Mellick & Co.
We are aware that in some jurisdictions a judgment is rendered and, therefore, entered at the earliest time at which written evidence of the order, deсree, judgment or other written document is embodied in the records of the court. However, we incline to the opinion that the better view is, and it has often been so held, that a judgment is rendered when the judge acts, as a duly constituted сourt, in declaring his decision of law and pronouncing judgment thereon in open court. (49 C.J.S. “Judgments,” sec. 113; 4 C.J.S. “Appeal and Error,” sec. 445.) Regularly, a judgment
Webster defines the word “pronounce” as follows: “to utter officially; * * * declare solemnly; * * * declare publicly; announce; * * * tо utter or speak aloud; * * * to deliver, as a speech; * * * to utter words.” And the synonyms given are "articulate; utter; speak.” (Webster’s New International Dictionary, 2d ed. 1949; see also “Words & Phrases,” vol. 34, p. 329.) Freeman, in his work on “Judgments,” (vol. I, sec. 48, 5th еd.) states: “Before a pronouncement should be taken as the judgment, it must be clear that it was intended as such and not merely an announcement of the opinion of the court or an indication of what the judgment is going to be.”
It has rеpeatedly been held that a memorandum signed by the judge cannot be taken or used as the record judgment. It is but a direction to enter judgment. Bruce v. Ackroyd,
Until such pronouncement in open court, the memoranda or “judgment ordеr” was not the judgment of the court. It was simply evidence of his conclusion as to the final disposition of the case. This is apparent, if any indication is needed, from the language of the letter to the clerk. His direction to file the order was permissive, not mandatory, and his suggestion to have the appropriate docket entries made at a future date contemplated the rendition of the judgment at the next regular session, at which time
It is well settled that courts can exercise judicial functions only at the places fixed by law. (Jackman v. North,
We conclude a judgment can only thus be legally made by a duly constituted court and only rendered when it is pronounced in oрen court. Any previously purported rendition of the same is a nullity and the mailing of a judgment order by the trial judge, in absentia, to the cleric, and the subsequent placing thereof in the files by him does not constitute the rendition of a judgment nor the “entry” thereof within the meaning of the statute. It follows therefore the judgment was rendered and entered on the same date, vis: June 24 and that the appeal was taken in apt time.
Appellant files, with its statement, brief and argument, a mоtion to amend the record here. This motion was not presented to the court nor has this court power to amend the records of the court below. (Bergen v. Riggs,
The motion to amend the record filed in this court is overruled, the appeal here is dismissed and the judgment of the Appellate Court, Fourth District, is affirmed.
Judgment affirmed.
Mr. Justice Fulton, dissenting.