McClain Adm'r v. Davis

Lugas, President : A. J. Lowther brought an action before a justice in Doddridge county, and a verdict of the jury was rendered in favor of the plaintiff on the 8th of April, 1 «86, for one hundred and eighty four dollars. No judgment was entered upon this verdict. The docket showed, however, that an execution had issued at the date of the verdict. On the 31st of December, 1887, a renewed execution was issued. This execution recited that a judgment had been rendered by W. E. Nutter, J. P., and L. E. Randolph, J. 1\, on the 8th day of April, 188(3. On the 17th of January, 1888, the defendant, Davis, by his counsel, moved before the justicie to quash the execution, which motion the justice denied, and the defendant appealed. The case was tried by the Circuit Court on this appeal-and was there dismissed, upon the ground that the appeal was improvidently awarded. Thereupon a further appeal from the decision of the Circuit Court refusing to quash the execution was prosecuted to this Court, and here the judgment of the Circuit Court, overriding the motion to quash the execution, was reversed, and the case remanded. Point 1 of the syllabus of the case as tried here was “An execution purporting to be issued upon the judgment of a justice, where there is in fact no such judgment, but simply the verdict of the jury, is void, and the justice should quash such execution upon notice and motion.” Lowther v. Davis, 33 W. Va. 132 (10 S. E. Rep. 20). The judgment of this Court proceeded upon the ground that there was no such judgment as the one recited by such execution. The concluding paragraph of the opinion of this Court upon this branch of the case is as follows: “These provisions” (that is, the provisions of the Code previously cited) “clearly show" that no execution can bo issued by the justice until there is a judgment rendered, upon which it can be issued. It is clear that no execution can he issued on the verdict of a jury, but that there must be a judgment entered on the verdict by the justice to authorize the execution; and unless there is such judgment, the execution is void and should he quashed on a proper motion by the defendant therein.” — 332 — While this appeal was pending, viz., on the 20th of March, 1888, the two justices who tried the case originally met together, and entered the following order: “A. J. Lowther v. W. H. H. Davis. March 20th, 1888. We, W. E. Nutter and L. F. Randolph, justices of the peace, who presided at the trial of this cause on, to wit,‘the 8th day of April, 1886, in which trial a verdict was rendered by the jury in favor of the plaintiff, having failed to enter judgment as prescribed by law, do enter the judgment now for that time in the following words and figures, to wit: It is therefore considered by the court that A. J. Lowther recover from W. H. II. Davis the sum of two hundred and twenty one dollars and ninety three cents, with interest from the 8th day of April, 1886, until paid, and his costs by him in this behalf expended, which is ascertained to be thirty two dollars and fifty cents ($32.50). Given under our hands this 20th day of March, 1888. W. E. Nuttee, J. P. L. E. RANDOLPH, J. P.” The plaintiff afterwards died, and his administrator made a motion before the justice to revive the judgment in his name, and defendant opposed the motion, and the justice refused to revive; and on appeal to the Circuit Court that action was affirmed, and the administrator brings the case here on appeal. In this action of the Circuit Court in refusing to revive this judgment we think there was no error, but that it was clearly right on several grounds. In the first place the case may be regarded as a res adja-dicata, this Court having in effect directed the execution to he quashed, upon the ground that no such judgment had been rendered or entered. It is true that the record now produced of an attempt on the part of the two justices to enter a judgment mmc pro tunc was not then before this Court; but the principle often announced is, that everything litigated on the former trial or which might and ought to have been litigated, is closed by the final adjudication here. The attempt to enter a judgment mmc pro lane might have been made before the execution issued which was here quashed; and the parties, having failed to make the attempt before bringing the case to this Court, — 333 — ought not to be permitted to do wo after this Court had decided that no judgment had been rendered. Moreover,the language of this Court, as above quoted from the opinion, precluded the idea that the entry of a judgment within tlie time prescribed by the statute is not essential to its validity. But, aecomUi/, were it otherwise, the language of the Code (see section 114, c. 50) taken in connection with other provisions in purl materia, is too unequivocal to admit of misconstruction. • Where the language is unambiguous, no ambiguity can be authorized by interpretation. Five or six sections of the Code, immediately succeeding section 114, show that the object of the legislature was to draw a marked distinction between the rendition of a judgment and its entry. When, therefore, in 'section 114, the legislature provides: “In other cases judgment shall be entered within twenty four hours (Sundays excepted) after the trial,” it is taking unwarranted liberty with their language to say that when they used the word “entered” they meant “rendered;” or to hold that the judgment, if rendered, might be entered after the lapse of not only twenty four hours, but of two years after its rendition, as was attempted in this case. The question as to what constitutes the entry is an entirely different one. All that can be said upon that subject is that the very least required to give validity to the judgment is some written evidence contained in the papers or on the docket that it has been rendered, and this writing must be made within the twenty fours (Sundays excepted) as prescribed by the statute. Lithe third place, this entry of.the judgment made by these justices seems to have been done upon their own mere motion, and without any notice whatever to the defendant in the bourt below. It is a well-established rule that, if they regarded the omission of the entry as a mere clerical error, they could only correct such error upon reasonable notice to the other party. This is the well-established practice in the Circuit Courts, and in this Court. See Code, c 134, ss. 1, 5. In any point of view, we must regard this action of the justices as absolutely without warrant of law and entirely null and void. It is well known that the justice’s court has no regular term, and if his proceedings are — 334 — to be carried in bis own breast for years, and then entered in a case no longer pending, his docket and proceedings would soon be in a chaotic* condition, and absolutely useless for any practical purpose. In the case of Powell v. Com., 11 Gratt. 822, in construing the power of the court over a judgment rendered at a previous term, and the power of amendment of judgments and decrees by the judge in vacation after the adjournment of the term, it was said: “It was intended to authorize amendments in support of a judgment in cases in which there was something in the record by which they could safely be made-. It could not have been intended to authorize an amendment to be made upon the individual recollection of the judge or by proof (dhuuleC’ Ho in regard to the correction of clerical errors generally, Mr. Black thus lays down the rule: “That a court has a right at a term subsequent to one, at which a judgment is rendered, to correct by an order nunc pro time a clerical error or omission in the original entry, is indisputable. The error, whether of omission or of commission, must appear from the record of the proceedings in which the entry of judgment is made.” 1 Black, Judgm. § 131. lu Halley’s Adm’r v. Baird, 1 Hen. & M. 24, it was held that the “district court has no .power or jurisdiction to reverse, alter or amend a judgment given at a former term of the said court which had been entered on the order-book, and signed by a judge in open court.” Upon the other hand, in Shelton v. Welsh, 7 Leigh, 175, it was held that a clerical error might be corrected at a subsequent term. In the present case, if it were conceded that a justice of the peace could at any time enter a judgment imita pro tune, after the termination of his session at which it was rendered, he certainly could not do so except upon reasonable notice to the parties interested, nor could ho at any time do. so from his own recollection of what had occurred, but would have to rely exclusively upon some sufficient evidence appearing in the record or papers in the case, showing that such a judgment had been rendered. We think it quite evident, therefore, that in the present case the justices acted without warrant of law, in excess of — 335 — their jurisdiction, and that the action of the Circuit Court iu refusing to renew the pretended judgment was correct, and must be affirmed.