Lincoln v. Cross

By the Court, Cole, J. From the view which we have taken of this case, it does not become necessary to determine whether the assignment, as originally made by Casselman, was fraudulent and void as to his creditors, or whether, if the ■ assignment was void at the time of its execution, the objection to it was removed by the amendment made on the 12th of November, 1857. It will, undoubtedly, be conceded that the assignment was valid and binding as to all the world, except as to the assignor’s creditors, who alone could take advantage of any defect in it. The respondent, Cross, justified [95] the taking of the goods out of the possession of the assignee, by virtue of a levy, under an execution issued upon an alleged judgment recovered against the assignor, and in favor of Johnson & Shaw. He, therefore, attempted to show before the referee, that such a judgment did in fact exist. And although the referee found as a matter of fact, that such a judgment had been obtained, yet in his report he sets forth the alleged judgment, which, we think, is only an order for a judgment, and not a judgment. From a transcript of the record of proceedings in the case of Johnson & Shaw vs. Casselman, it appears that a demurrer was interposed to the complaint in that action. Upon the hearing of this demurrer, the circuit court made an order, the material part of which is as follows : Title, &c. “ Ordered judgment against said defendant upon his demurrer, for frivolousness thereof, with five dollars costs of this motion; and further, ordered judgment in this action in favor of said plaintiffs against said defendant, for four hundred and forty-five, and 24-100 dollars, with costs of this motion.” Signed by the circuit judge, &c. No further judgment was entered in the cause, and it is upon this order for a judgment that the execution issued under which the respondent, Cross, justified taking the assigned property. And it is insisted on the part of the respondents, that the above is a final judgment, and not an order. We think otherwise. The plaintiffs, Johnson & Shaw, unquestionably might have proceeded and entered a final judgment, in conformity to this order; but this they did not do. They considered this a final judgment, upon which an execution might issue, and in this misconceived its nature and character. As we understand it, it is not a final judgment, but an order for a judgment. This is apparent from its language. [96] The order of the circuit court refusing to set aside the report of the referee, and confirming the same, must therefore be reversed, and the cause remanded for further proceedings.