Rutherford v. Crawford

McCay, Judge. 1. By the act of 17th March, 1866, (acts of 1865-6, page 22,) all civil jurisdiction for the trial of matters involving private rights, was taken away from the inferior court by the repeal of those sections of the Code giving the jurisdiction. By another act, approved the same day, acts of 1865-6, page 71: “All suits now on the docket of the inferior courts, are transferred to the county court.” The title to the act is : “To transfer all civil cases.” We think the language of this act, page 71, is broad enough to transfer, not only pending cases, but final judgments unperformed. Until performed they are still fairly on the dockets, and litigation may still occur in relation to them. As the act on page 22, abolishes the civil [142] jurisdiction of the inferior court, it is to be presumed that the legislature intended by the act, on page 71, to substitute the county court for it completely, and it is due to public justice to construe these acts liberally, so as to carry out the manifest purpose of the legislature. We are, therefore, of the opinion, that unperformed judgments were transferred to the county court and that the clerk had authority to issue the execution, and make it returnable to the county court. 2. A levy on land consists in the entry; that is all the seizure usual in this state. Indeed, by fair implication, such is the clear provision of law. Notice is to be given to the person in possession (Code, 3643,) and the sheriff, after the sale, is to put the purchaser in possession : Sec. 3651, Code. It is therefore of prime importance, that this entry shall be complete. It is not a mere return to the court of the officer’s acts, as in the case of a levy upon personal property ; it is the levy itself. It should describe the property, with sufficient distinctness to enable the purchaser to know what he is buying and to enable the officer to put the buyer in possession, and as is express! y provided by section 3640, it must be signed by the officer making it. We have held that if it be left unsigned by mistake, that is, if the entry be made with intent then, to make a levy and the description be complete, it is competent for the officer to complete it by correcting his failure. But prima facie, it is no levy. The entry may have been left unsigned with intent to do so. The intention to levy may be incomplete. Some further instruction or information may besought, etc., and if this be so, the levy is not made. We do not think the facts, as presented by this record, make out the case of a complete levy. The signature by the officer after his term of office is ended, is nothing. It is not official. He is not under oath. His bondsmen would not be liable for malfeasance in the act. And he cannot, when in office, as the deputy of a new officer, complete his acts under his former principal. We think, however,, the facts, the truth of the case might, under our law, which gives the court of law equitable juristion, have been shown by evidence at the trial, and if the levy [143] -was in fact made, with intent then to devote the property to sale, and the failure to sign at the time was a mere accident-, a clerical misprision, that the defect would be cured. 3. We know of no way to prove the proceedings of a court of record but by its records. It appears from an inspection of the record that there was no jury at the. term this judgment was had. If so, there was no authority to give a judgment. Under the law, as it then, stood, a verdict was necessary to have a judgment upon-. It is a gross'and palpable irregularity. Not a mere defect in'pleading, but as appears from the record, an exercise of authority not authorized, by law. Without a jury there could be no verdict, and without a verdict the attorney of the plaintiff had no.right to enter up a judgment. 4. Whether this can now be corrected by an order nuna pro tuno, we do not say. The superior court has the custody of the record, and on a proper case might make it speak the truth. How far such a correction would affect the claimant, is another question. Judgment reversed.