Washington National Bank v. Williams, 190 Mass. 497

Washington National Bank v. Williams

190 Mass. 497 | Mass. | 1906

Hammond, J.

This is an action of contract against a surety on a recognizance from Joseph Dews, a poor debtor. It is agreed that the writ was entered, judgment was entered, execution was issued, the judgment debtor was arrested and the recognizance was given all on the same day.

The question is whether the execution was void as having been issued contrary to law. Pub. Sts. c. 171, § 15, (now R. L. c. 177, § 16,) in force at the time of this execution, provided that no execution should be issued “ within twenty-four hours after the entry of judgment.” It has been decided, however, that this provision being for the benefit of the judgment debtor can be waived by him (188 Mass. 103) ; and we are of opinion that the agreement filed in court shows such a waiver. It is contended that the plaintiff failed to show that the judgment upon which the execution issued was duly entered, either upon any general order or special order of the court. The judge found as a fact that there was no general order, but that there was a special order. The defendant contends that the finding that there was a special order was not warranted by the evidence.

Upon this matter the evidence was somewhat conflicting. The docket entries contained the following: “ 1896, August 20, judg*502ment for plaintiff for $4,174.66 and costs. Execution forthwith.” The original papers consisting of the original writ, the declaration, the answer and the agreement for judgment, all being dated August 20,1896, and all having been entered in court on that day, were before the court. Mr. Bearse, an assistant clerk of the court called by the defendant, testified that he had been connected with the clerk’s office ever since 1887; that there was nothing on either the papers or the docket indicating any action by the court, and that “ under the practice of the office if there had been any action on the part of the court it would have appeared on the docket or upon the papers.” Upon cross-examination he testified that he had nothing to do with the docket entries made in this case, nor with the entries upon the original papers ; that “ the entries in the docket are made up after the entries on the original papers, and making them up is a mere clerical matter for any one in the office under direction from the person who makes them on the paper, so that the real original entries are made on the papers.” He further testified that until about September 1,1902, “it was the custom of the office to enter judgment at once upon the filing of an agreement for immediate judgment signed by both parties.” In rebuttal Mr. Willard, called by the plaintiff, testified that he was the first assistant clerk of the court, had been such for fifteen or twenty years, bad been one of the clerks for twenty-eight years, and had been in the office in some capacity as an assistant for about thirty-eight years ; and that during all of that time he had been practically familiar with the customs and practices of the office; that the office entries made upon the original papers in this case were all in his handwriting, but the docket entries were in the handwriting of some other person, and that it was the custom of the office to “ hand over the papers to anybody to make the docket entries.” He further testified that before 1902 it always had been the practice of the office to enter judgment “forthwith, that is, on the same day, under an agreement” like the one filed in the original case; that he could not remember whether in this case he obtained an order from any judge of the court before entering the judgment; that it has not been the universal practice of the clerks to enter “ their initials or the judge’s initials on a paper or an order in an informal matter where the *503parties have agreed.” Upon cross-examination he testified that it has not always been the practice of the clerk to make a memorandum either on the docket or on the papers to the effect that the judge has made an order, that “ the practice is just as much one way as the other,” that it would possibly depend upon the importance of the order, and that he “ should not necessarily do it in entering up by consent of parties a judgment for $4,000.”

The above contains the substance of the testimony bearing upon the question whether the judgment was entered by a special order. This is not a case like Hathaway v. Clark, 5 Pick. 490, upon which the plaintiff relies, where the record fails to disclose a fact essential to the jurisdiction of the court or the validity of an order of the court. There is a record here in the shape of a docket entry, arid this entry shows that judgment was entered. “ The docket is the record, until the record is fully extended, and the same rules of presumed verity apply to it as to the record. Every entry is a statement of the act of the court, and must be presumed to be made by its direction, either by a particular order for that entry, or by a general order, or by a general and recognized usage and practice, which presupposes such an order. We must therefore presume that the several entries on the docket under this action were made by the clerk by proper authority.” Shaw, C. J. in Read v. Sutton, 2 Cush. 115, 123. We cannot say that, in coming to the conclusion that as a matter of fact this presumption was not controlled by the testimony, the trial judge in the case before us made any error. The finding was warranted by the whole evidence. We see no error of law in the conduct of the trial.

Exceptions overruled.