Fleming v. Kemp

HALE, J. This action was brought by Kemp against Fleming to recover on a judgment entered in his favor for $386.86 on January 19,1932, by Ed. Robinson, J. P. The defense is that the original “ judgment” was void and not a judgment in fact; that it did not show who obtained it or the amount thereof; and, consequently, it is urged it could not form the basis of an action, and that *152 parol evidence should not have been admitted to supply the defects in the original proceeding’s. The Circuit Judge found against defendant, who moved for a new trial, which was denied and he prayed, was granted and perfected an appeal in the nature of a writ of error, and by proper assignments of error raises the questions before set forth.. A photostatic copy of the docket is attached hereto and made a part of this opinion. See 178 S. W. (2d) .page 402. It shows that J. M. ICemp was plaintiff and M. A. Fleming the defendant. It shows the suit was based on a note for $313.56' plus interest and attorneys ’ fee, and an account of $40.07. It also shows judgment was rendered by the Magistrate. It must have been in favor of the plaintiff, as there was no indication or suggestion of any cross-action by the defendant. Certainly it is reasonable to presume that the plaintiff obtained a judgment, as the overwhelming majority of the suits brought before a Justice of the Peace result in judgment for the plaintiff. The judgment entered was for “$38686”. Must we say that this judgment was for thirty-eight thousand six-hundred eighty-six dollars? Is parol evidence inadmissible to supply a decimal point at the end of the third figure, so as to show the judgment was for $386.86? Is the law impotent and incapable of protecting the litigants and the process of its court? Must we presume that judgment was entered for an amount beyond the jurisdiction of the Justice? Or may we, to the contrary, presume the legality of the judgment and that it was for $386.86', a sum within the jurisdiction of the Magistrate? Let us look at it this way: Suppose the suit had been in a court of record and that judgment was rendered for “$38686” when the *153 debtor owed $386.86, would he have been barred from showing that it was for this latter sum? “. . . ‘ The strictness required in keeping the docket of a superior court need not be observed by a justice of the peace in order to make the docket good and valid for all purposes for which it may be kept. Every reasonable presumption must be indulged to uphold the proceedings of a justice of the peace. Hence, the failure of the justice to sign his name to the judgment entered on the docket does not render the judgment void . . . 31 Am. Jur. 777-778, Sec. 130: Our Code provides: “Every intendment is in favor of the sufficiency and validity of proceedings before justices of the peace, when brought in question, either directly or collaterally, in any of the courts, where it appears on the face of the proceedings that the justice had jurisdiction of the subject-matter and of the parties. ’ ’ Code, Sec. 10189. As before pointed out, the original suit was on a note for $313.56 plus interest and attorney fees and also on an account of $40.07. If we break down this judgment so as to allow these items it would give us: Account $40.07, principal of note $313.56, interest $1.70, 10% attorney fees $31.53; total $386.86. We think it beyond question the parol evidence accepted by the trial judge was admissible to explain the docket entries so as to show that the plaintiff obtained a judgment for $386'.86' against the defendant. These record entries, while incomplete, have a germ of substance and we think are embraced in the following rules: “Where a justice’s docket omits to enter a proceeding which should be entered, other proper evidence may be *154 admitted to prove the proceeding, and, where entries on the doclcet are not sufficiently complete to be intelligible, parol evidence may be admitted to show the proceedings.” (Emphasis supplied.) 32 C. J. S., Evidence, section 867, page 799. In American Jurisprudence it is said: “Similarly, the general rule precluding a collateral attack upon a judgment does not prevent a judgment which is incomplete and ambiguous upon its face from being- explained by parol evidence.” 30 Am. Jur. “Judgments”, Sec. 31, page 834. This rule is based upon common sense and arises from necessity in order to do justice between the parties. “An obscure judgment entry may, however, be construed'with reference to the pleadings and records, and where upon the whole record its sense can be clearly ascertained, the judgment will bé upheld.” 33 C. J. 1196. 'See also 31 Am. Jur. 779, Sec. 132. The duties of justices of the peace are fixed by our Code as follows: “Every justice of the peace shall keep, in a well bound book, properly ruled for that purpose, a docket of all judgments rendered by him, showing in whose favor and against whom each judgment is rendered, the names of the parties in full, and the date and amount of the judgment. ’ ’ “He shall also keep, in the same book, an execution docket, showing the amount of each execution, in whose favor and against whom issued, the date of issuance, to whom delivered, the date of return and by whom returned and the substance of the return, specifying particularly whether satisfied in whole or in part. *155 “The justice shall enter therein, in continuous, order; and in distinct columns, with proper date to each act: (1) The number of each case; (2) the date of trial, and of each continuance, if any; (3) the names of the parties in full; (4) the amount of the judgment; (5) the name of the stay or, if any; (6) the name of the officer who returns the warrant; (7) the date of the issuance of each execution, and to whom delivered; (8) the bill of'costs, the items written in words, with the amounts in figures; (9) the date of the return of the execution, by whom re-, turned, and the substance of the return. “A substantial compliance with these requirements will be sufficient to render the proceedings and entries valid for all purposes, so far as the parties litigant are concerned, and all persons claiming under them.” Code, Secs. 10142, 10143, 10144, 10145. In an annotation to Sec. 10145, it is said : “The following judgments of a justice on his docket have been held sufficient: ‘Gave judgment in favor of plaintiff for $171 and costs’ Hutchinson v. Fulghum, 4 Heisk. (51 Tenn.), 550. ‘Elliott & Co. v. W. B. Jordan, judgt., 346.82.’ Elliott & Co. v. Jordan, 7 Baxt. (66 Tenn.) 376. Judgment rendered according* to the form prescribed, except that there was no caption to the columns of his docket, is void. Johnson v. Billingsley, 3 Humph. (22 Tenn.) 151. Where the columns have proper headings, and under the heading ‘Amount of judgment,’ is placed simply ‘$200.’ this was held to be a sufficient judgment. Bell v. Williams, 36 Tenn. (4 Sneed) [196] 198; Elliott & Co. v. Jordan, 7 Baxt. (66 Tenn.) 376. ‘Judgment given May the 17th, 1868, for $433.90, and costs.’ After styling the case, ‘Judgm’t’May 28th, *156 186- . . . $134.48.’ White v. Patterson, 1 Bast. (60 Tenn.) 450.” In the cited case of Elliott & Co. v. Jordan, 66 Tenn. 376, the Supreme Court said: “The justice’s docket shows the following: Elliott & Co. v. W. B. Jordan, Judgt., 346.82, in one case, and the same, varying’ the amounts, in the other cases. “The act of 1845, eh. 17, which is carried into the Code, sec. 4129, almost verbatim, provided that the justice should keep in a well bound book a docket of all judgments rendéred by him, which shall show in whose favor and against whom each judgment was rendered, also the date of its rendition, and the amount thereof. “Under this statute, in Johnson v. Billingsly, 3 Humph. [151] 153, the court held a judgment valid which was as follows: ‘B. F. Budgeman v. Thomas Moneyman, 43.15-43.15.’ In this case Judge Beese says: 'On grounds of public policy of necessity almost, their proceedings must be upheld whenever possible.’ In the case of Bell v. Williams, 4 Sneed [196] 199, the docket was something more formal, showing a caption as follows: 'Parties names—Edwin Harris v. J. H. & J. L. Bell, amount of judg’t $200.’ And this was held g’ood. “It is evident these two cases make this judgment valid; as it shows more on its face than the first, and is equal to the second. In fact, we readily understand from the face of' the judgment, taken in connection with the title of the case, Elliott & Co. v. Jordan, that the judgment is in favor of the plaintiffs against the defendant. If it had been otherwise, the entry would have been under title judgment‘ for defendant. ’" Elliott & Co. v. Jordan, 66 Tenn. 376, 381, 382. *157 In the case of Collins v. Williams, 162 Tenn. 262, 36 S. W. (2d) 93, the Supreme Court held that the statute requiring justices of the peace to keep a docket did not limit the time in which the judgment might he entered; that his judgment is rendered when announced and not when entered. By a parity of reasoning the failure of the justice’s clerk to properly enter the judgment on the docket would hot he void but only erroneous. It is said that the admission of parol evidence constitutes a collateral attack on the judgment. We cannot agree to this. This evidence is not to destroy hut to vivify an imperfect judgment. It results that we are constrained to affirm the judgment below.