Appellee, as plaintiff in the court below, .sued Clarence O. Jackson, appellant herein, on the balance due on an account. Trial was duly had before the Court sitting without a jury and on the 18th day of May, 1955, the trial judge wrote a letter to the Clerk of Court of Maricopa County stating in part as follows: “You will please let the record show that judgment be entered for the plaintiff * * * from date * * This letter was received by the Clerk on the following day, but no order was entered on the civil docket until May 31, 1955. The notation in the civil docket provides:
“May 31, 1955 Judgment entered from minutes of May 19, 1955 — Div. 2 — ‘It is Ordered that plaintiff have Judgment against the defendant for the sum of $625.59 with interest at the rate of 6% per annum from date each party to bear their own costs.’ ”
Five days prior to the above entry of judgment, that is, on May 26, 1955, appellee caused an execution to issue against real property owned by appellant, and subsequently the sheriff of Maricopa County levied upon and sold it to appellee for the amount of the judgment, together with interest and costs. It is appellant’s position that on the 26th day of May, 1955 there was no valid judgment upon which execution could issue; that accordingly, all subsequent proceedings, including execution, sale, and delivery of sheriff’s deed were void and a nullity.
It is the general rule that an execution issued without a judgment to support it is void, no authority is conferred
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upon the officer to whom it is directed, and even if a judgment is subsequently obtained, it will not have a retroactive effect so as to validate the execution. Evans v. City of American Falls, 52 Idaho
7,
At the common law, an execution might issue as soon as the final judgment was signed, before its entry of record, nor was the docketing of the judgment deemed essential to execution. Stevens v. Manson,
In recent cases, it has been held that a. judgment is operative from the date of its, rendition, and that the failure of the cleric, to perform the ministerial act of entering the judgment of record does not delay its, operation, State v. Haney, Mo.,
However, in this state, both by statute and rule of procedure, the formal entry by the clerk is an indispensable prerequisite to valid execution. Rule 79(a), Rules of Civil Procedure, 16 A.R.S., requires the-clerk of the court to keep a book known-as the "civil docket” in which shall be entered all judgments. Rule 58(a) provides.
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that the notation in the civil docket constitutes entry of judgment and the judgment
"is not effective before such entry.”
'These rules of civil procedure have been several times construed, the most recent being Harbel Oil Co. v. Steele,
Not only is a judgment ineffective until entry thereof in the civil docket, but the legislature has provided that “the party in whose favor a judgment is given may, at any time within five years
after entry of the
judgment, have a writ ■of execution issued for its enforcement.” A.R.S. § 12-1551, subd. A. The time of entry is the day when the clerk makes the notation in the civil docket. By the specific language of the statute, execution may not issue prior to such entry. Where the statute requires that a judgment be entered before execution, there can be no •valid or lawful execution without such an ■entry. Tanner v. Wilson,
Without the determination of further questions raised which need not be discussed in the light of our conclusions here, the judgment of the court below is reversed with directions that the execution be quashed and all proceedings had thereunder be vacated and set aside.