{ "id": 5784381, "name": "C. H. Martin, Assignee of Granville Wheellberger, v. C. H. Knights et al.", "name_abbreviation": "Martin v. Knights", "decision_date": "1894-10-29", "docket_number": "", "first_page": "65", "last_page": "71", "citations": [ { "type": "official", "cite": "56 Ill. App. 65" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "36 Ill. 510", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5215705 ], "opinion_index": -1, "case_paths": [ "/ill/36/0510-01" ] }, { "cite": "57 Ill. 330", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5240161 ], "opinion_index": -1, "case_paths": [ "/ill/57/0330-01" ] }, { "cite": "44 Ill. 133", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5224125 ], "opinion_index": -1, "case_paths": [ "/ill/44/0133-01" ] }, { "cite": "36 Ill. 79", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5214706 ], "opinion_index": -1, "case_paths": [ "/ill/36/0079-01" ] }, { "cite": "38 Ill. 90", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 428197 ], "opinion_index": -1, "case_paths": [ "/ill/38/0090-01" ] }, { "cite": "125 Ill. 478", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2935878 ], "opinion_index": -1, "case_paths": [ "/ill/125/0478-01" ] }, { "cite": "135 Ill. 176", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "129 Ill. 325", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "123 Ill. 149", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "127 Ill. 305", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "92 Ill. 619", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2743028 ], "opinion_index": -1, "case_paths": [ "/ill/92/0619-01" ] }, { "cite": "33 Ill. 166", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5211894 ], "opinion_index": -1, "case_paths": [ "/ill/33/0166-01" ] }, { "cite": "103 Ill. 929", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "107 Ill. 154", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5367807 ], "opinion_index": -1, "case_paths": [ "/ill/107/0154-01" ] }, { "cite": "4 Scam. 362", "category": "reporters:state", "reporter": "Scam.", "opinion_index": -1 }, { "cite": "17 Ill. 231", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2591753 ], "opinion_index": -1, "case_paths": [ "/ill/17/0231-01" ] }, { "cite": "43 Ill. 288", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5265929 ], "opinion_index": -1, "case_paths": [ "/ill/43/0288-01" ] }, { "cite": "31 App.' 403", "category": "reporters:state", "reporter": "Ohio App.", "opinion_index": -1 }, { "cite": "69 Ill. 334", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "80 Ill. 519", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "3 Gilman 48", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": -1 }, { "cite": "19 App. 359", "category": "reporters:state", "reporter": "Ohio App.", "opinion_index": -1 }, { "cite": "41 App. 598", "category": "reporters:state", "reporter": "Ohio App.", "opinion_index": -1 }, { "cite": "39 Ill. 10", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "54 Ill. 190", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "61 Ill. 492", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460628 ], "opinion_index": -1, "case_paths": [ "/ill/61/0492-01" ] }, { "cite": "131 Ill. 555", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "23 Ill. App. 169", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": -1 }, { "cite": "119 Ill. 323", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "90 Ill. 453", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2754360 ], "opinion_index": -1, "case_paths": [ "/ill/90/0453-01" ] }, { "cite": "17 Brad. 377", "category": "reporters:state", "reporter": "Bradf.", "opinion_index": -1 }, { "cite": "42 Ill. App. 371", "category": "reporters:state", "reporter": "Ill. App.", "weight": 2, "opinion_index": -1 }, { "cite": "21 Ill. App. 232", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2415768 ], "opinion_index": -1, "case_paths": [ "/ill-app/21/0232-01" ] }, { "cite": "16 Brad. 625", "category": "reporters:state", "reporter": "Bradf.", "opinion_index": -1 }, { "cite": "109 Ill. 19", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "opinion_index": -1 }, { "cite": "22 Ill. App. 641", "category": "reporters:state", "reporter": "Ill. App.", "weight": 2, "opinion_index": -1 }, { "cite": "91 Ill. 751", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "opinion_index": -1 }, { "cite": "33 Ill. App. 19", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4986972 ], "opinion_index": -1, "case_paths": [ "/ill-app/33/0019-01" ] }, { "cite": "91 Ill. 571", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2752955 ], "opinion_index": -1, "case_paths": [ "/ill/91/0571-01" ] }, { "cite": "24 Ill. 94", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "138 Ill. 273", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "117 Ill. 251", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2894840 ], "opinion_index": -1, "case_paths": [ "/ill/117/0251-01" ] }, { "cite": "132 Ill. 403", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5419807 ], "opinion_index": -1, "case_paths": [ "/ill/132/0403-01" ] }, { "cite": "21 App. 232", "category": "reporters:state", "reporter": "Ohio App.", "opinion_index": 0 }, { "cite": "119 Ill. 321", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "112 Ill. 39", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "95 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2720878 ], "opinion_index": 0, "case_paths": [ "/ill/95/0011-01" ] }, { "cite": "16 Brad. 625", "category": "reporters:state", "reporter": "Bradf.", "weight": 2, "opinion_index": 0 }, { "cite": "109 Ill. 19", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "91 Ill. 571", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2752955 ], "opinion_index": 0, "case_paths": [ "/ill/91/0571-01" ] } ], "analysis": { "cardinality": 681, "char_count": 12867, "ocr_confidence": 0.523, "pagerank": { "raw": 6.026754263579386e-08, "percentile": 0.37345864565849207 }, "sha256": "f891b5b48de09a4e495ed2e5704fd8c5185b8f9fb83350a37267ad45e18e8cef", "simhash": "1:8a0e632be885a14d", "word_count": 2315 }, "last_updated": "2023-07-14T21:04:37.497383+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "C. H. Martin, Assignee of Granville Wheellberger, v. C. H. Knights et al." ], "opinions": [ { "text": "MA Presiding Justice Wall\ndelivered the opinion of the Court.\nThis 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.\nAfter the judgment was confessed the judgment debtor made a general assignment for the benefit of creditors.\nThe 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 \u201c party \u201d to the judgment.\nWe think the assignee may be regarded as the proper \u201cparty\u201d to make the motion. Baker v. Barber, 16 Brad. 625; Jenkins v. Greenbaum, 95 Ill. 11; Conkling v. Ridgely, 112 Ill. 39; Roche v. Beldan, 119 Ill. 321.\nIt 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.\nIt appears that they were presented to the clerk and by him marked \u201c judgment entered on this note,\u201d 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.\nIt is urged, however, on behalf of the appellee, that the formal entry of judgment in what is termed the \u201c journal,\u201d or more properly the \u201c record,\u201d is not essential when the judgment is by confession. We can not agree with this position and are of opinion such entry is indispensable.\nAs 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.\nCounsel for appellant urged that upon the authority of Ling v. King, 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.\nThe only proof necessary was that when the execution was issued the judgment had not been Avritten.\nIt 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.\nHow, 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.\nThe only point at issue is, which was first, and the only proof necessary need go no further.\nSo far as it does go further it is irrelevant and unimportant, but .the relevant portion is not to be discarded.\nConceding the doctrine taught by the cited cases to be correct it should control here.\nWithout 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.\nThe judgment is reversed and the cause remanded with directions to quash the execution.", "type": "majority", "author": "MA Presiding Justice Wall" } ], "attorneys": [ "Appellant\u2019s Bribe, Daniel Abbott and John A. Gray, Attorneys.", "Appellees\u2019 Brief, Clark Varnum, Attorney." ], "corrections": "", "head_matter": "C. H. Martin, Assignee of Granville Wheellberger, v. C. H. Knights et al.\n1. Parties\u2014Motion to Set Aside a Judgment.\u2014An assignee for the benefit of creditors is a proper party to a motion to vacate a judgment confessed by the assignor before making the assignment.\n2. Confession of Judgment\u2014ramp of Papers.\u2014Where the papers in a proceeding to confess judgment, presented to the clerk, were by him not filed, but were marked \u201cjudgment entered on this note\u201d and signed by him, and by his consent placed in a vault for safe keeping, it uas held to be a mere irregularity and did not vitiate the judgment.\n3. Execution\u2014Issued Before Judgment is Recorded.\u2014An execution issued upon a judgment before the judgment is entered in the record, is void.\nMemorandum.\u2014Motion to quash an execution. Appeal from the Circuit Court of Fulton County; the Hon. Jefferson Orb, Judge, presiding. Heard in this court at the May term, 1894.\nReversed and remanded.\nOpinion filed October 29, 1894.\nAppellant\u2019s Bribe, Daniel Abbott and John A. Gray, Attorneys.\nAppellant contended that the papers filed with the clerk did not authorize or support the entry of a judgment, and that the execution was issued before the judgment was entered, and is therefore void.\nTo authorize the entry by the clerk of a judgment in vacation, there must be filed with him a declaration, a warrant of attorney, proof of its execution and a cognovit, and there must be a strict compliance with the statute. Gardner v. Bunn et al., 132 Ill. 403; Campbell v. Goddard, 117 Ill. 251; Little et al. v. Dyer, 138 Ill. 273.\nThe clerk has no power to enter judgment by confession in vacation, without proof being filed of the execution of the power of attorney. Durham v. Brown, 24 Ill. 94; Boundy v. Hunt, 24 Ill; 598.\nThe execution was issued and placed in the hands of the sheriff before the judgment was entered, and is therefore void.\nOur Supreme court say: \u201c All know that the filing of such (necessary) papers in term time without the entry of a judgment order would not constitute a judgment, or authorize the issuing of an execution, and we must presume that when the General Assembly authorized an entry of judgment in vacation, it was to be done in the same form as when entered in court in term time.\u201d Ling et al. v. King & Co., 91 Ill. 571; Poppers v. Meager, 33 Ill. App. 19.\n\u201c In vacation, when confession of judgment is entered by the clerk, the judgment order, as held in Ling v. King, 91 Ill. 751, must be entered before a judgment can be held to be in existence.\u201d Jasper et al. v. Schlesinger, 22 Ill. App. 641; Cummings v. Holmes et al., 109 Ill. 19.\nAn execution issued before judgment, confessed in vacation, has been entered up by the clerk, is void, and can not be cured by subsequent amendment of the record. Baker v. Barber, 16 Brad. 625; Humphreys, Newton & Co. v. Swaim, 21 Ill. App. 232; Swaim v. Humphreys, 42 Ill. App. 371.\nAppellant\u2019s motion to amend the record to conform to the facts should have been allowed. If such amendment had been made, the execution would have been void, and quashed upon motion, or could have been attacked collaterally, or writ of error would lie to reverse the judgment. Askew v. Goddard, 17 Brad. 377; Doty v. Colton, 90 Ill. 453.\nIf the record as it remains- in the Circuit Court does not state the facts as they actually occurred, defendant should have made application to have the court correct the record, so as to make it speak the truth. Roche v. Beldan, 119 Ill. 323; Dillman v. Nadelhofer, 23 Ill. App. 169.\nChap. 25, Starr & Cur. Stat., Yol. 3, p. 250, prescribes what books are to be kept by the clerk; among others are the following:\n\u201c Third. Proper books of record, with indices, showing the names of all the parties to any suit or judgment therein recorded, with a reference to the page where it is recorded.\n\u201c Fourth. A judgment and execution docket, in which all final judgments shall be minuted at the time they are entered, or within sixty days thereafter, in alphabetical order, by the name of every person against whom the judgment is entered, showing in proper columns the names of the parties, the date, nature of the judgment, amount of debt, damages and costs in separate items for which it is issued, to whom issued, when returned, and the manner of its execution.\n\u201c Fifth. A fee book.\n\u201c Seventh. Such other books of record and entry as are provided by law, or may be required in the proper performance of their duties.\u201d\nThe universal practice under this statute has been to record a \u201cjudgment order in the book of record\u201d mentioned in \u201c Third \u201d subdivision above noted. And the statute requires it to be therein recorded.\n\u201c The judgment must in fact be entered up.\u201d Cummins v. Holmes et al., 109 Ill. 19. \u201c Here, then, were all the facts appearing to require the clerk, under the statute, to enter the legal conclusion, but that was not done, and until done there was no judgment.\u201d Ling v. King & Co., 91 Ill. 751.\nThe judgment \u201c must be actually entered of record;\u201d \u201c whether the clerk had written up the judgment \u201d and \u201ca judgment of record to support it (execution),\u201d are expressions of the court found in Swaim v. Humphreys, 42 Ill. App. 371, showing what is required to constitute \u201c a judgment.\u201d\n\u201c In vacation, where a confession of judgment is entered by the clerk, the judgment order must be entered, before any judgment can be held to be in existence. The judgment and the record evidence of it is in that case the same thing.\u201d Jasper et al. v. Schlesinger, 22 Ill. App. 641.\nThe judgment under said \u201cFourth\u201d subdivision is to be \u201c minuted \u201d at the time it is \u201c entered, or within sixty days thereafter.\u201d Plainly showing that it was not a necessary part of the \u201cjudgment order,\u201d required to be entered or recorded before the issuance of execution, and that the word \u201c entered \u201d had reference to the recording of the judgment order in the book required by the \u201cThird\u201d subdivision.\nExample of what is not a sufficient judgment or record, are found in Meyer v. Tillage of Teutopolis, 131 Ill. 555; Edwards v. Evans, 61 Ill. 492; Faulk v. Kellums, 54 Ill. 190; Martin v. Barnhardt, 39 Ill. 10; Alton Lime & Cement Co. v. Calvey, 41 App. 598; Haines v. The People, 19 App. 359.\nIt requires at least an order and finding to make a valid judgment. Sears v. Sears, 3 Gilman 48; Stevison et al. v. Earnest, 80 Ill. 519.\nFor the meaning of the words \u201c record of any judgment,\u201d see Vail v. Iglehart, 69 Ill. 334. \u201cA judgment must be proved by the record itself.\u201d Moore v. Bruner, 31 App.' 403. \u201c There must be a record or memorial of the proceedings of a court of record in every cause in order to support and give effect to such proceedings.\u201d Am. and Eng. Ency. of Law, Vol. 20, pp. 476 and 477. \u201c The judgment must be certain or capable of being made so, and it must be a final judgment. It must have been duly entered, though perhaps not in accordance with the rules of the common law.\u201d\nAppellees\u2019 Brief, Clark Varnum, Attorney.\nNo person but a, party to a judgment or execution can move to set aside the judgment or quash the execution. Sec. 65, Chap. 110, Rev. Stat. Ill.; Bonnell v. Neely, 43 Ill. 288.\nA stranger to the record can not interfere to quash the levy or the execution. Hitchcock v. Roney, 17 Ill. 231; Swiggart v. Harber, 4 Scam. 362; Oakes v. Williams, 107 Ill. 154.\nIf the court has jurisdiction to render a judgment, such judgment can not be questioned by anybody except by a party to the record of such judgment. Freydendall v. Baldwin, 103 Ill. 929; Wimberley v. Hurst, 33 Ill. 166; Cemetery Co. v. People, 92 Ill. 619; Maloney v. Dewey, 127 Ill. 305.\nThe assignee has no authority to appear in another court and prosecute a suit without an order of the County Court .authorizing him to do so. Baker v. Barber, 16 Bradw. 621.\nThe assignee is not the representative of the creditors but is merely the agent of the assignor. Bouton v. Dement, 123 Ill. 149; Ide v. Sayer, 129 Ill. 325; Republic Insurance Co. v. Swigert, 135 Ill. 176.\nJudgment by confession will not be vacated to let in a defense when the records fail to show that a defense can be successfully made. Holmes v. Parker, 125 Ill. 478; Hemstead v. Humphrey, 38 Ill. 90; Rising v. Brainard, 36 Ill. 79; Stuhl v. Shipp, 44 Ill. 133; Knox v. Savings Bank, 57 Ill. 330; Farwell v. Meyer, 36 Ill. 510." }, "file_name": "0065-01", "first_page_order": 61, "last_page_order": 67 }