52 Ind. App. 457 | Ind. Ct. App. | 1912
This is a suit begun by appellant to enjoin the enforcement of an execution in favor of appellee, Johnson, in the hands of appellee, Sanders, sheriff. Appellee, Johnson, will be referred to as appellee.
The issues of fact in the case were presented by. a complaint in two paragraphs, the first of which was' dismissed after trial; neither paragraph was denied, but each was specially answered. A demurrer to each answer was overruled. A reply in denial and special replies were filed. After the case had proceeded to trial appellee, over appellant’s objection, filed a cross-complajnt in two paragraphs. After a motion to strike out each of these paragraphs had been overruled, a general denial was filed, and the trial of the cause concluded. To set out the substance of these various pleadings would extend this opinion to an unreasonable length. We think it sufficient to say that the issue tendered by the complaint was, as expressed by appellant in its brief, “whether any judgment had ever been rendered” in the original action in which the execution was issued.
This appeal is prosecuted from that part of said judgment rendered on the cross-complaint. The errors relied on are : (1) In overruling appellant’s motion to strike out the cross-complaint of appellee; (2) in permitting the paper called a cross-complaint to be filed by appellee; (3) in ovei’ruling appellant’s demurrer to the second paragraph of the answer of appellee to the second paragraph of appellant’s complaint; (4) in its second conclusion of law on the facts specially found; (5) in its third conclusion of law on
The facts controlling on the questions involved in the appeal are presented by the court’s finding of facts, and are, in substance, as follows: (2) On October 8, 1908, appellant filed in the original action its bills of exceptions Nos. 1 and 2, and its written motion and causes for a new trial, and “on the same day, while this motion was pending and undisposed of, the appellee, by his attorney, moved the court for judgment upon the verdict of the jury”, which motion the court at the time sustained, and announced from the bench and rendered judgment on such verdict in favor of appellee for $6,000 and costs; that on October 10, the court overruled the motion for a new trial, and granted appellant ninety days in which to file a bill of exceptions, and appellant then prayed an appeal to the Appellate Court, which was granted on the filing within 90 days of an appeal bond in the sum of $8,000, with the American Surety Company of New York as surety. (3) At the time of the filing of said amended complaint, and subsequent thereto, the court used a bench docket, on which he personally noted in writing minutes or memoranda of the court’s proceedings in said cause: that the minutes or memoranda made by the trial court itself upon said bench docket, relative to^ the proceedings had in said case, and set out in the last preceding finding are in the words and figures following; “Oct. 4. Jury return answer to interrogatories and general verdict in the sum of $6,000. Oct. 8. Dft. files bills of except. No. 1 and No. 2. Deft, also files written causes and motion for new trial. Oct. 10. Motion for new trial overruled and exception and 90 days to file bills of exceptions. Dft. prays an appeal to Appellate Court which is granted upon filing
On the foregoing facts the court announced the following conclusions of law: (1) That plaintiff, The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company, is entitled to the relief prayed for in the second paragraph of complaint, that is, that defendants and each of them be forever enjoined from executing the execution now in the hands of defendant, William Sanders, sheriff of Pulaski county, Indiana, and that the plaintiff is entitled to recover its costs in this action. (2) That the judgment appearing of record in order-book No. 34, page 402, of the records of the Pulaski Circuit Court, and set out in finding No. 4, is a valid, subsisting judgment in favor of defendant and cross-complainant, Carl Johnson, and against plaintiff, The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company, and that said judgment was duly and legally rendered by the Pulaski Circuit Court and entered of record by the clerk thereof; but that no execution may issue thereon until said judgment record is read and signed in open court. (3) That the judgment and record entry in the case of Carl Johnson v. The Pittsburgh, Cincinnati, Chicago and St. Louis
The first, second and eleventh of the above errors present in different form practically the same question, and may be disposed of together. It is insisted by appellant (1) that the cross-complaint does not grow out of and is not germane to the subject-matter of the complaint; (2) that the relief sought therein is such as could be obtained only in the original action, and hence not proper by way of cross-complaint in this action; (3) that a cross-complaint must not only arise out of the same subject-matter as the original action, but that it must also be between the same parties.
The third error relied on, which calls in question the sufficiency of the second paragraph of answer to the second paragraph of complaint, may he disposed of by saying that this answer also substantially follows the answer in the case of Kent v. Fullenlove, supra. The court said with reference to the answers filed in that ease that they “did not set up any matter which was a bar to the action. They admitted the facts to be substantially as alleged in the complaint. Regarded, however, in the nature of motions or cross-corn-r plaints to have the record amended, "by having it read mid signed in open court, we are inclined to hold them sufficient.” (Our italics.)
Alleged errors four and five will be considered together. In support of the contention that the court erred in its second and third conclusions of law, it is insisted, in effect, (1) that no issue presented by the complaint and answer warrants either of said conclusions, and that each conclusion is inconsistent with the first conclusion, because if the judgment was valid appellant was not entitled to an injunction; (2) that it appears from the findings that the judgment at
The purpose of the reading and signing is to verify and approve the record entry, and see that it correctly sets out the judgment before announced and rendered by the court, and the judge’s signature thereto is required as certification and authentication that the judgment as entered was in fact rendered by the court.
A judgment entered of record and not signed is not necessarily invalid or void, depending on whether the judgment was .in fact rendered by a court with jurisdiction and authority to render the same. Catterlin v. City of Frankfort (1882), 87 Ind. 45, 56; Griffith v. State (1871), 36 Ind. 406, 408; Jaqua v. Harkins (1907), 40 Ind. App. 639, 82 N. E. 920; Pittsburgh, etc., R. Co. v. Johnson, supra. But, under the law, the signature thereto of the judge of the court which rendered the judgment furnishes the evidence of its rendition and the authentication thereof necessary to support an execution issued thereon. §1450 Burns 1908, Acts 1885 p. 124; Griffith v. State, supra; 23 Cyc. 850; Pittsburgh, etc., R. Co. v. Johnson, supra.
The legislature by passing §1451 Burns 1908, §1331 R. S. 1881, providing that a judgment may be signed at any subsequent term of court, after its rendition, recognized that an unsigned judgment was not void, because if void there was no necessity for such an act.
It may be open to doubt whether it is strictly and technically accurate to say that the manual signing of a judgment after term by the trial judge, under the authority of §1451, supra, is a signing mmc pro tunc, but for the purposes of the questions here presented, this language in the conclusion of law and in the pleading was not of controlling importance. The questions involved are whether the facts of this case warranted the trial court in having such record read and signed, and whether when so read and signed it was effective from its rendition.
When considered in connection with the statute and decisions, there was no inconsistency between the conclusion' that the enforcement of the present execution should be enjoined, and the conclusion that the judgment was valid and “should be and is now read and signed in open court nunc pro tunc and said judgment may now be enforced by proper writ. ’ ’
In support of its contention that the court erred in overruling the motion for new trial, it is first insisted that “oral testimony alone will not be sufficient on which to make an entry nunc pro time after the case has ceased to be in fieri,” and in this connection counsel assert that “there is no evidence except the oral testimony of M. M. Hathaway that any judgment was ever rendered, hence nothing to sustain that part of the findings that a judgment was rendered. ’ ’
“September Term, 1908. October 8, 28th day. Carl Johnson vs. P. C. C. & St. L. Railway Company. No. 7180. ’ ’
The body of the order is just as set out in finding No. 4 above. This, we think, was some record evidence of the rendition and entry of the judgment.
There was read in evidence the order-book entry of October 10, 1908, which is as follows: “Carl Johnson vs. P. C. C. & St. L. Railway Company. No. 7180.
Come now again the parties, by counsel, and motion by defendant for new trial is overruled, to which ruling of the court defendant excepts and 90 days given in which to
This order shows a prayer for appeal granted, and the fixing of the amount and sureties of the appeal bond. This entry contained no judgment. The trial court had a right to infer from this item of evidence that appellant would not do a foolish or useless thing, and appeal merely from the ruling on a motion for a new trial, but that it was appealing from a final judgment before rendered.
The appeal bond given by appellant was also offered and read in evidence, which was the usual appeal bond given in such cases and contained among its other provisions the following: “The condition of the above obligation is such, that whereas, heretofore, to wit: On the 9th day of October, 1908, the said Carl Johnson in the Pulaski Circuit Court, recovered a judgment against the said The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company for the sum of six thousand dollars, in damages and costs of suit, etc., from which said judgment of said Pulaski Circuit Court, the said The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company appeal to the Supreme Court of Indiana. Now the said The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company shall and will duly prosecute said appeal, and abide by and pay the judgment and costs, which may be rendered or affirmed against it then the above obligation to be null and void, otherwise to be and remain in full force and virtue in law. The Pittsburgh, Cincinnati, Chicago and St. Louis Railway (seal) Company by G. E. Ross, Solicitor The American Surety Company (seal) of New York by John F. Brookinger, (seal), Its Attorney in fact.” This bond is indorsed as follows: “No. 7180. Carl Johnson vs. The P. C. C. & St. L. Ry. Co. Appeal Bond.
It was admitted by appellant and appellee that this bond is the appeal bond which was filed on December 31, 1908, in cause No. 7180 in the Pulaski Circuit Court. This bond expressly recognizes that a judgment had been before rendered in the case. True, it refers to a judgment rendered on October 9 instead of October 8, and indicates that the appeal was to the Supreme Court instead of the Appellate Court, as provided by order granting the appeal. At all events this bond was some evidence from which the trial court might infer that a judgment had been in fact rendered in the case sometime before October 10, 1908, and after the rendition of the verdict on October 4, 1908.
The above indorsement on the appeal bond and other various entries showed that George E. Ross was one of appellant’s attorneys, representing it at various steps and stages of the original action. The original complaint on which the restraining order was granted herein was introduced and read in evidence. It was a verified complaint sworn to by George E. Ross and contained the averments as found by the court in its finding of facts, No. 8 above. The theory of this complaint at the time it was filed and sworn to was that the court in said original action did render judgment on October 8, 1908, but that the same was rendered after a motion for a new trial had been filed, and while such motion was pending undisposed of, and for this reason the judgment was invalid and void.
The oral testimony of Mr. Ross shows that this original complaint sometime later, and when the second paragraph was filed, was amended, with the consent of the court, by inserting the words “clerk of the” before the words “Pulaski Circuit Court,” but that the same was never re-sworn to. The complaint as amended showed that the clerk
In addition to the record and documentary evidence above indicated, there was oral evidence as follows: M. M. Hathaway testified that he was one of the attorneys for appellee Johnson in the original case against appellant, viz., No. 7180 in the Pulaski Circuit Court; and among other answers he made the following: “The rulings of the court were as they appear in that order-book; that is the order-book entry Judge Ross, that you and I compared. * * * The court announced his rulings from the bench, just as they appear in that order-book, and I prepared the order-book entry. * * * As attorney for the plaintiff I orally made a motion that the court r * * render judgment on the verdict by the jury and the court announced from the bench that the motion was sustained and judgment on the verdict, is the substance of what he said. * * r I prepared the order-book entry in the matter. I have it with me. It was that among the files and papers here. I prepared the order-book entry and handed it to Judge Nye, and he, after reading it, to the clerk of this court * * Judge Bur-son, [one of the appellant’s attorneys in the trial of the ease] was present at the time the judgment was rendered. This order-book entry was among the papers in the case. ’ ’
Appellant’s witness, M. J. O’Connell, the deputy clerk who made the entry in the order-book, testified, among other
This prepared entry was introduced in evidence, and is the same as of the record entry above of date October 8, 190.8. The clerk testified: “I was in court * * * T remember about the judgment being entered. I remember there was a judgment but I paid no particular attention to it.”
John C. Nye, the trial' judge, testified. He identified his signature to the record at bottom of page 401 of order-book 34, and said with reference to the same: “I signed it in the belief I was signing the day’s proceedings. * * * I can say clearly this: that when I put my signature there it was my intention to sign the proceedings of the day and I thought I was doing so. ’ ’
Ve think we have indicated enough of the evidence to show that every finding had at least some evidence to support it. It is admitted by both parties, and in fact appellant bases its contention on the fact, that thisi entry of October 8, 1908, purporting to be a judgment, is the only judgment ever entered in the case. From some judgment appellant prayed an appeal to the Supreme Court. The appeal was granted conditioned on the filing of a bond in the sum of $8,000 as directed by the court. On December 31, 1908, appellant filed its appeal bond as directed by the court, reciting therein that judgment had been rendered in said cause on October 9, 1908. By this bond, recognizing said judgment and the appeal therefrom, appellant ob
The finding and judgment herein in favor of appellant on his complaint show that the trial court wholly disregarded the intent and belief of the witness, and in fact found that the judge’s signature appearing on page 401 of the entry was placed there in vacation, before the judgment and not after it, and that the judgment would not support an execution until read and signed, so that any error in the admission of that part of the evidence which might be said to be objectionable was rendered harmless by the finding and judgment. Such an error will not work a reversal of a case. Vulcan Iron Works Co. v. Electric, etc., Min. Co., supra, and cases cited.
Finally, appellant insists that the court erred in-overruling the several specifications of its motion to modify the judgment. These several assigned errors present in a different form questions already considered, and for the reasons herein indicated in discussing the other errors relied on we think no reversible error is presented by any of the several specifications. We find no reversible error in the case and are of the opinion that the judgment of the lower court was authorized both by the evidence and the law.
Judgment affirmed.
Note. — ‘Reported in 99 N. E. 508. See, also, under (2) 31 Cyc. 358; (5) 38 Cyc. 1986; (6) 23 Cyc. 784; (10) 23 Cyc. 845; (11) 3 Cyc. 242; (12) 38 Cyc. 1411. As to nwno pro tuno entries of judgment, see 4 Am. St. 828. As to the facts or conditions that render a judgment void, see 29 Am. St. 78. As to injunction against execution sale generally, see 111 Am. St. 97. As to stay, otherwise than statutory, of execution and what court may direct, see 127 Am. St. 712.