Avery & Ensign v. Babcock

Mr. Chief Justice Walker delivered the opinion of the Court: This was a motion to quash an execution, and set aside a sale made under it. The judgment was originally rendered by a police magistrate in the city of Galesburgh. An execution was issued and returned no property found. Afterwards a transcript of this judgment was filed in the office of the circuit clerk of Knox county, upon which the clerk issued an execution upon which the sale was made. The transcript of the police magistrate contains this entry : “ On day of trial, suit called, defendant appeared and acknowledged the above amount correct ; judgment is therefore rendered by confession against H. B. Avery & G. D. Ensign for the sum of 383.18 debt and 2.39 costs.” The caption to this judgment states the demand to be “ 383.18” and is manifestly what was referred to in the judgment, as the “ above amount.” On the hearing the motion was overruled and exceptions were taken. The ground relied upon for a reversal is, that the judgment is indefinite and uncertain. There is no word, mark or character, which, in any manner, indicates for what the judgment is rendered. It is true that there are the figures “ 383.18,” but whether they are intended to represent that number of American, English or German coins, we are left entirely to conjecture. Nor is anything found in the record from which it can be certainly inferred. It may be said, that indebtedness is usually for dollars and decimal fractions of a dollar, but we know it is not of unfrequent occurrence that agreements are made for sums in other coins, especially when made in other countries. The decisions of this court are uniform, that in a judgment for money the sum must be specified in words or figures with some mark or character designating the precise sum. Lawrence v. Fast, 20 Ill. 338; Lane v. Bommelmann, 21 Ill. 143; Eppinger v. Kirby, 23 Ill. 521; Dukes v. Rowley, 24 Ill. 211; Bailey v. Doolittle, id. 577. This case falls clearly within the rule announced in these cases, and no reason is perceived why it should not be governed by it. The judgment of the court below, overruling this motion," was rendered on the 22d day of October, 1859, and the writ of error was issued on the 6th day of April, 1864. Thus it will be perceived that five years have not intervened from the rendition of the judgment, to the suing out of this writ. The bar of the statute only commenced running from the date of the judgment brought under review. The judgment on the motion was the final order of the court, and was such an order as may be reversed or affirmed, on error or appeal in this court. Error did not lie.from the judgment of the .police magistrate and no judgment was rendered in the Circuit Court on the transcript when it was - filed. If improperly filed, or it was otherwise irregular, that would afford grounds for quashing the execution or . other subsequent proceedings. And when the court erroneously refuses to do so, a writ of error may then be prosecuted to correct that judgment. Until there is a judgment rendered by the Circuit Court on a motion involving.the correctness of proceedings upon such a judgment there is nothing upon which to bring error. The judgment of the court below is reversed and the cause remanded. Judgment reversed.