October 10, 2012

Ewell, &c., v. Jackson, &c., Laurel, 1908

Previously:


-----------

Ewell, &c., v. Jackson, &c.

COURT OF APPEALS OF KENTUCKY

129 Ky. 214; 110 S.W. 860; 1908 Ky. LEXIS 150

June 3, 1908, Decided

PRIOR HISTORY:  [***1]  Appeal from Laurel Circuit Court.
D. K. RAWLINGS, Special Judge.
Judgment for plaintiffs. Defendants appeal.--Affirmed.

DISPOSITION: Judgment affirmed.

COUNSEL: EWELL & SMITH for appellants.

H. C. HAZELWOOD and E. H. JOHNSON fo appellees.

(No briefs. Record out of office.) 

JUDGES: JUDGE CARROLL. 

OPINION BY: CARROLL 

OPINION

 [**860]   [*215]  OPINION OF THE COURT BY JUDGE CARROLL--Affirming.

This action was brought to enjoin the collection of an execution issued upon what purported to be a judgment of the Laurel circuit court in the case of Ewell & Smith v. J. C. Jackson's Heirs, upon two grounds: First, that the judgment was never signed on the order book by the judge who delivered it; and, second, that the judgment disposed of a material question not presented by the pleadings in the action. H. C. Faulkner, the regular judge of the Laurel circuit court, could not sit in the case in which the judgment was rendered, and D. K. Rawlings was selected  [*216]  as special judge by agreement of parties. Judge Rawlings, after hearing the case, took it under advisement, and in due time returned or had delivered to the clerk a written judgment signed  [**861]  by him. The clerk recorded the [***2]  judgment, omitting the name of the judge; and the recorded judgment was never signed by Rawlings. The judgment rendered by Rawlings was entered upon the order book of the Laurel circuit court on a day of the regular term of the court, and was recorded with the orders and judgments made and entered by the regular judge in cases pending before him. The orders of the day made by the regular judge, and which included the judgment rendered by Rawlings, were signed at the end of the day's business by the regular judge in the usual and customary manner.

Upon this condition of the record, three questions are presented: First, is it necessary to the validity of a judgment rendered by a special judge that it should be signed by him on the order book? Second, if he fails to sign the judgment on the order book, can the judgment be signed by the regular judge with the same effect as if it had been signed by the special judge; and, third, if the regular judge could not sit in the case, and for that reason a special judge was selected, can the regular judge sign the judgment or orders made by the special judge? Section 390, Civil Code Prac., provides: "The judgment must be entered on the order book [***3]  and specify clearly the relief granted or other determination of the action." Section 378 of the Kentucky Statutes of 1903, relating to the duties of clerks of courts, provides that: "The proceedings of each day shall be drawn up by the clerk from his minutes in a plain legible manner, which after being corrected as ordered by the court  [*217]  and read in an audible voice, shall be signed by the presiding judge." It will thus be seen that under the Code and statute it is indispensable to the validity of a judgment that it shall be entered upon the order book of the court, and signed by the judge who rendered the judgment or his successor in the disposal of the case, or by the regular judge, unless he is disqualified. These two acts must concur. In the absence of either, there is no judgment. A paper signed by a judge, although it contain the entire judgment, and be delivered to the clerk of the court to enter upon the order book, is not a judgment in fact until it has been entered upon the order book of the court and signed by a judge. Courts of record speak only by their records duly entered and signed in the books provided for that purpose. The judgment in an action or proceeding [***4]  is usually the final termination of the matter in the court in which the case is pending. By it the most valuable rights of the citizens are determined, and it is of the highest importance that it should be preserved in permanent form and be in fact signed by the very person whose authority directed its entry, unless he fails within the meaning of section 977 of the Kentucky Statutes of 1903 to sign it. This statute provides that: "Upon the death of a circuit judge, or when from any cause the office is vacant, or when the judge is absent, his successor, no matter how chosen, may sign any orders left unsigned by his predecessor, the same as his predecessor might have done."

It sometimes happens that after a judge has directed the entry of an order or judgment he is prevented by absence or death or other cause creating a vacancy in the office from signing the orders or judgments so entered. And when such a condition arises the orders made and entered by his direction  [*218]  may be signed by his successor. This section applies to special as well as regular judges. If a special judge, on account of death or absence from the court or retirement from the case, should fail to sign the [***5]  orders in the case in which he presided, they may be signed by the special judge who succeeds him in the case, or by the regular judge of the court, unless he was disqualified from presiding in the case. And so, if the regular judge is prevented by death or absence from the court, or by a vacancy in the office, from signing the orders or judgments made and directed to be entered by him, his successor may sign them. Nor do we think it indispensable to the validity of an order or judgment entered by a special judge that it should be signed at its close by his successor in office, or by the regular judge, if the orders of the day among which it is entered are signed by the regular judge, or the person acting in his place as judge. The signing of the orders of the day by the regular judge or judge acting for him will have the same force and effect as if he signed the particular order or judgment entered by the special judge, provided he was qualified to sit in the case in which the order or judgment was entered by the special judge. But, if the regular judge could not preside in the case, it would seem to follow that he should not sign the orders or judgments made in it. If the orders [***6]  of the day which included this judgment had been signed by a judge other than the regular judge, or by a judge who might have presided in the case in which Rawlings was chosen to preside, or, if the particular judgment entered by Rawlings had been signed by a regular judge who was qualified to sit in the case, or by a judge who was selected in the place of Rawlings to preside as special judge, the presumption would be indulged that Rawlings was  [*219]  absent, and hence the signature by such judge to the orders of the day or to the judgment rendered by Rawlings would give life and effect to his judgment.

Let us illustrate this point by the facts of this particular case: The regular judge could not sit in the case in which Judge Rawlings was selected as special judge. The record does not disclose the reason why the regular judge could not sit; but the presumption is that he was disqualified for some good cause. But whatever the reason, as he could not sit in the case, neither could he by signing any orders or judgments rendered by the special  [**862]  judge give life or vitality to them. The same reason that prevented him from hearing and disposing of the case would necessarily [***7]  preclude him from signing the orders and judgments entered in the case. It would be a most anomalous state of affairs to hold that, although the regular judge could not preside in the case, nor hear or determine any of the matters at issue between the parties, yet he might give validity and effect by his signature to the final judgments therein. The effect of this practice, if permissible, would be that, although a judge could not make an order of continuance in a case, or enter an interlocutory order, or pass on some immaterial question, yet he could by signing the judgement determine finally the rights of the parties. We, therefore, conclude that, as the regular judge could not sit in this case, the fact that he signed the orders of the day embracing the judgment, his act was not a signing of the judgment entered by the special judge, and therefore the record stands as if the judgment was left unsigned. An unsigned judgment is no judgment; hence an execution could not issue upon it. Com. v. Chambers, 24 Ky. 108, 1 J.J. Marsh. 108; Raymond v. Smith, 58 Ky. 65, 1 Met. 65, 71 Am. Dec. 458;  [*220]  Fristoe v. Gillen, 80 S.W. 823, 26 Ky. L. Rep. 149; [***8]  Johnson v. Com., 80 Ky. 377, 4 Ky. L. Rep. 210. As there was no judgment upon which an execution could issue, the execution defendants had the right to enjoin the sheriff from seizing and selling their property under the execution. Knott v. Jarboe, 58 Ky. 504, 1 Met. 504; Robinson v. Carlton, 96 S.W. 549, 29 Ky. L. Rep. 876; Bramlett v. McVey, 91 Ky. 151, 15 S.W. 49, 11 Ky. L. Rep. 49.

This conclusion renders it unnecessary to consider the question that the judgment disposed of matters not presented by the pleadings.

Wherefore the judgment is affirmed.

No comments:

Related Posts Plugin for WordPress, Blogger...