104 Ill. 557 | Ill. | 1882
Lead Opinion
delivered the opinion of the Court:
Appellee contends, that by filing the transcript of the judgment of the justice of the peace, rendered in 1873, in the office of the clerk of the circuit court, in 1874, it became a judgment of the circuit court, and by operation of law the original judgment of the justice of the peace was merged in the supposed judgment of the circuit court, and ceased to have any force, and therefore no action can be maintained, or judgment recovered on it. We are unable to assent to this proposition. The statute provides, that when such a transcript shall be filed in the circuit clerk’s office, “the judgment shall thenceforward have all the effect of a judgment of the circuit court, and execution shall issue thereon out of that court, as in other eases.” The 97th section of chapter 79, Rev. Stat. 1874, in terms declares the object of the proceeding is to he “for the purpose of obtaining execution to be levied on real estate.” It is still merely the judgment rendered by the justice of' the peace. The proceeding is purely statutory, and for the purpose of obtaining satisfaction of the judgment remaining on the justice’s docket. A plaintiff makes his judgment a lien upon the real estate of the defendant, by filing a transcript of his judgment in the office of the circuit clerk, and by execution thereon may subject it to sale and satisfaction of his judgment. The filing of the transcript and suing out an execution from the clerk’s office is but a mode of obtaining satisfaction, by rendering defendant’s real estate liable to sale in the same manner as on judgments recovered in the circuit court. If the filing of the transcript operated as a merger and extinguishment of the justice’s judgment, the interest on the justice’s judgment from the time of its rendition till the filing of the transcript should be added, and should become a part of the principal of the judgment in the circuit court, and draw interest. No one has placed such a construction on the act, nor was such its purpose. The judgment remains the same,' but an- additional means of having execution is given by the statute. It becomes a lien on real estate. It becomes a record. Execution may be issued upon it by the clerk, and it may be satisfied in the same manner as a judgment of the circuit court.
Appellee contends that payment to the clerk was a satisfaction of this judgment. To this we can not assent. At common law the clerk is not a collecting officer, nor has he been made such by statutory enactment. The sheriff is, and a judgment may be paid to him when he holds a ft. fa., and payment to the sheriff will operate as a satisfaction, and in such case he returns the writ indorsed satisfied, and the filing of the writ becomes evidence of record of the satisfaction of the judgment; or a judgment may be satisfied by payment to the plaintiff or to his attorney of record, and the clerk, on the presentation to him of the satisfaction piece, or a proper receipt in full, is authorized to enter satisfaction in the judgment docket. But we find no authority at common law to support the position that payment to the clerk operated as satisfaction of the judgment. Nor is anything found in our statute authorizing the clerk of the circuit court to receive money in satisfaction of a judgment. The clerk not being a collecting officer, the payment of the money to him did not operate to satisfy the judgment, and his entry of satisfaction on the judgment docket was unauthorized and void, and his want of power to make the entry may be shown in a collateral proceeding. Had he made the entry on a return of satisfaction by the sheriff, or on a receipt in full from the plaintiff or of his attorney of record, or under the order of either, to avoid the effect of the entry of satisfaction the plaintiff, would no doubt have been required, on proper notice and motion, to have the satisfaction set aside" before he could have sued on the judgment. In that case the entry of satisfaction by the clerk would have been based on evidence the law recognizes as satisfaction by parties authorized to receive the money necessary to satisfaction of the judgment. But here the money was received by the clerk, and the law has not made that satisfaction, or evidence _ of satisfaction, and the clerk had no more right to make the entry than had he been so ordered by a stranger to the judgment. There was no evidence on the record, or in the files of the office, upon which to base the entry. Had there been that, the satisfaction should have been set aside by ¿the court before the judgment would have been opened for any proceedings under it.
The court below, therefore, erred in treating the judgment as satisfied, and in not rendering judgment in favor of the plaintiff below, and the judgment of the Appellate Court must be reversed, and the cause remanded.
Judgment reversed.
Dissenting Opinion
dissenting:
I concur in the views expressed in this case, except in so far as it relates to the legal effect of the act of the clerk in entering upon the record satisfaction of this judgment. Appellants insist that the entry upon the record in this ease of the words “satisfied by payment, ” etc., was not authorized under the facts of this case, and that such entry is no obstruction to his recovery, unless the clerk had lawful authority to receive the money from the defendant in satisfaction. I find no authority on this precise question. If the entry of satisfaction by the clerk upon the roll or record becomes part of the record to the same extent as does the return of a sheriff upon an execution, then it is plain that, being part of the record, the entry is conclusive until it is set aside by order of the court, made in a direct proceeding for that purpose, (Freeman on Judgments, see. 432,) and the same can not be attacked collaterally by. showing that the clerk did wrong when he made-the record. The clerk himself, if this entry be (properly considered) a part of the record, has no power to set the same aside. (Hughes v. Streeter, 24 Ill. 647.) I think that this entry should be regarded as a part of the record. I think its legal effect is to satisfy the judgment of record. So long as that satisfaction remains in force, no action can be maintained upon the judgment. If this satisfaction of record was entered improvidently, when it ought not to have been entered, it may be set aside by the circuit court on cause shown, on motion.
Counsel for appellants seem to think that this question is affected by sec. 16, chap. 25, Eev. Stat. 1874, relating to the judgment and execution docket to be kept by the clerk, in which docket it is there said: “A blank column shall be kept, in which may be entered a note of the satisfaction or other disposition of the judgment, and when satisfied, by execution or otherwise, * * * the clerk shall enter a minute thereof in such column, shoving how disposed of, the date, and the book and page where the evidence thereof is to be found. ” This provision is merely directory to the clerk, for the convenience of parties, and entries in such book do not, properly speaking, constitute any part of the roll or record. The rights of parties in nowise depend upon the fidelity of the clerk in keeping this docket. Its language assumes that satisfaction spoken of in that section means satisfaction of record, for it requires a reference to the book and page where the record evidence may be found. This distinction between the docket and the record is sanctioned by the reasoning of Judge Mabcy, in the case of Lownds v. Remser, 7 Wend. 37. The views here, expressed are in harmony with the entire reasoning in that case. The clerk has the power, by law, to enter satisfaction of judgments of record in his office, and in this case he did exercise that power, and until that order be set aside by the order of the court, I think no action can be maintained upon a judgment the satisfaction of which stands entered of record.
It ought to. be observed the entry of satisfaction is not made on the judgment docket, but upon the record, which is equivalent to an entry upon the rolls, under the old English practice. It is not denied that “the clerk, on presentation to him of a satisfaction piece, or a proper receipt in full, ” signed by the plaintiff or his attorney of record, “is authorized to enter satisfaction” of the judgment. If this be so, can such entry of record depend for its validity upon the evidence presented to the clerk to induce him to make the entry? If'it should turn out that such receipt in full was a forgery, would that invalidate the entry of satisfaction, or would it in such case require the order of the court to vacate the entry ?
