| Ill. App. Ct. | Oct 29, 1894
delivered the opinion of the Court.
This was a motion to quash an execution issued upon a judgment confessed in vacation, and to set aside the judgment. The ground mainly urged was that when the execution was issued the judgment had not been fully written up, though it had been properly noted and indexed in the judgment and execution dockets and in the fee book as well as in the index of the court record.
After the judgment was confessed the judgment debtor made a general assignment for the benefit of creditors.
The motion was made in the name and on behalf of the debtor and the assignee, but before decision the debtor formally withdrew the motion so far as he was able to do so and it was afterward prosecuted by the assignee. It is now urged that it was not competent for the latter to, urge the relief sought because he was not a “ party ” to the judgment.
We think the assignee may be regarded as the proper “party” to make the motion. Baker v. Barber, 16 Brad. 625; Jenkins v. Greenbaum, 95 Ill. 11" date_filed="1880-05-18" court="Ill." case_name="Jenkins v. Greenbaum">95 Ill. 11; Conkling v. Ridgely, 112 Ill. 39; Roche v. Beldan, 119 Ill. 321.
It is argued that the judgment is void because the original notes upon which it was entered were not filed with and left in custody of the clerk.
It appears that they were presented to the clerk and by him marked “ judgment entered on this note,” etc., which indorsement was signed by the clerk, and by his consent they were placed in the vault of one Fox for safe keeping. We regard this as but a mere irregularity which should not vitiate the judgment.
It is urged, however, on behalf of the appellee, that the formal entry of judgment in what is termed the “ journal,” or more properly the “ record,” is not essential when the judgment is by confession. We can not agree with this position and are of opinion such entry is indispensable.
As already stated the chief question is whether it is competent to show that the formal record of the judgment which professes to have been written on the 13th of June, when the judgment was confessed, was in fact not completed until the 14th or 15th, after the execution was issued.
Counsel for appellant urged that upon the authority of Ling v. King, 91 Ill. 571" date_filed="1878-01-15" court="Ill." case_name="Ling v. King & Co.">91 Ill. 571; Cummins v. Holmes, 109 Ill. 19; Baker v. Barber, supra, and Humphreys v. Swaim, 21 App. 232, the evidence was competent, and that the execution should have been held void, while the appellee insists that as the record imports verity the evidence is not admissible. The cases cited are to the effect that it is competent to show that the execution was issued before the judgment order was entered up, although both appear as of the same day, and that this does not contradict the record, "but merely shows which was done first. In the present case the record, though purporting to have been written on the 13th, the date of the execution, was not written until after the execution was placed in the hands of the sheriff. To prove this, it is said, does not necessarily contradict the record in its statement that it was entered on the 13th, but merely proves that before the record was in fact written up the execution was issued.
The only proof necessary was that when the execution was issued the judgment had not been Avritten.
It was not material, as it was not competent, to prove it Avas not Avritten the day it purported to be, but this Avas also shown.
How, because the latter fact also appeared, which tended to impeach the record, was no reason for excluding and refusing to consider the fact that the record was not Avritten until after the execution was issued. If it must be excluded then it follows that the law admits proof by Avhich it may be shoAvn that the execution was issued before the judgment was written if both were done the same day, but will not admit proof that the execution Avas first, when the proof also shoAvs that the judgment was not written the day it purports tobe, but on a later day, which would be manifestly absurd.
The only point at issue is, which was first, and the only proof necessary need go no further.
So far as it does go further it is irrelevant and unimportant, but .the relevant portion is not to be discarded.
Conceding the doctrine taught by the cited cases to be correct it should control here.
Without discussing the question and without intimating what view we might be inclined to take if it Avere res nova we are disposed to follow those cases and must therefore hold that the execution was void.
The judgment is reversed and the cause remanded with directions to quash the execution.