Conkling v. Nicholas H. Ridgely & Co.

Mr. Justice Sheldon delivered the opinion of the Court: This was a motion in the circuit court to set aside a judgment by confession in favor of N. H. Eidgely & Co., against Kimber, Eagsdale & Co., before the clerk of the circuit court of Sangamon county, Illinois, as of vacation. The regular term of the Sangamon county circuit court commenced October 2, 1882, when the court convened, and continued to transact business until December 27, 1882, at which time an order was entered adjourning the court to January 29, 1883, at which date the court again opened, and transacted business until February 3, 1883, when it adjourned sine die. On January 12, 1883, Kimber, Eagsdale & Co., by their attorney, appeared before the clerk of the said circuit court and confessed a judgment in favor of N. H. Eidgely & Co., for the sum of $36,319.89, upon certain promissory notes, for which sum judgment was accordingly entered, upon which an execution was afterward issued. On the 29th day of January, 1883, the assignee of Kimber, Eagsdale & Co., under a voluntary assignment, entered his motion in said court to set aside the judgment and vacate the execution, which motion the court overruled. On appeal to the Appellate Court for the Third District, the judgment overruling said motion was affirmed, and the assignee appealed to this court. The chief question presented upon this record is, whether in this case the 12th day of January, 1883,—the day this judgment by confession was entered,—was in term time or in vacation, within the meaning of our statute authorizing the entry of judgments’by confession in vacation. Judgments by confession can be entered before the clerk only in vacation. During term time they must be entered in open court. The judgment here was entered before the clerk as in vacation. But it is contended by plaintiff in error that it was not in vacation when the judgment was entered, but that the 12th day of January, 1883,—the time the judgment was confessed and entered,—was a day in term time; that it was part of the preceding October term, which commenced on October 2, 1882, and was not adjourned sine die until the 3d day of February, 1883, and that not having been taken in open court, the judgment was null and void. No doubt an application of the strict common law definition which we find of the term “vacation, ” to-wit, “a vacation is all the time between the end of one term and the beginning of another, ” (6 Jacobs’ Law Die. 323,) would make the time of the entering of this judgment not to be in vacation, as the October term, which commenced on October 2, 1882, did not end by final adjournment until February 3, 1883. The inquiry is, whether we must adopt this as the meaning of the word “vacation, ” in the construction of the 66th section of the Practice act, authorizing the confession of judgments in vacation. We think that under this act the term “vacation” may well be given a different meaning from what it had at common law, as above given. Under the earlier organization of courts in England, “terms ” of the courts were four periods in each year. They commenced on fixed days, and had a fixed time of termination, and they aggregated ninety-one days. The vacations embraced all the days in 'the year not -included in the “terms.” Any such a period of recess of a court of more than a month’s duration, as we find in this case, was unknown in that system. The early laws of this State, prior to December 9, 1871, provided for dividing the State into judicial circuits, and fixed the times for the commencement of the terms of the circuit courts in each county. In no case did the statutes in express terms fix the duration of the terms of such courts, though as the judges were required to hold terms in the different counties on fixed days, and had no authority to hold court in one county at a time the law required them to hold court in another, and only one term of a circuit court could be held or be open at any one time in a circuit, it followed, as a necessary construction of the statute, that upon the occurrence of the time fixed by law for the opening of the court in any one county in a circuit, the circuit courts in every other county stood adjourned until court in course. (Archer v. Ross, 2 Scam. 303.) In Cook v. Skelton, 20 Ill. 107, it was recognized that “the custom has always prevailed of adjourning from day to day, and for such other short periods as the convenience of the court and the dispatch of business might require. ” By the first section of the “Act to provide for holding regular and special terms of the circuit court in two or more counties in the same circuit at the same time,” approved December 9, 1871, it was provided that terms of the circuit court might be held in two or more counties in the same circuit at the same time, and that it should not be necessary to close any term in any county before the business of that term was disposed of, in order to begin a term in any other county in, the same circuit, if any circuit judge of the State could be had to preside over either of said terms. The 18th section of the act of February 22, 1872, conferred upon the circuit courts, when in session, the power to adjourn to any day not beyond the first day of the next term of the court in that county fixed by law. The effect of these statutes was to change the law in respect to the peremptory adjournments made necessary by the laws in force before, and to leave the duration of the terms of the counts practically at the discretion of the judges. By the 27th section of chapter- 83, of the Revised Statutes of 1845, it was provided that “any person, for a debt bona fide due, may confess judgment by himself, or attorney duly authorized, with or without process.” Thus stood the general law upon this subject until the passage of the act in regard to practice in courts of record, approved February 22, 1872, (Laws 1871-72, p. 348,) the 65th'section of which, being identical with the 66th section of the present Practice act, provides that “any person, for a debt bona fide due, may confess judgment by himself, or attorney duly authorized, either in term time or vacation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof become liens, in like manner and extent as judgments entered in term. ” In Middleton v. White, 35 Ill. 114, it was said, in reference to a similar local law passed in 1857, for the benefit of Kane and three other counties, “the counties of Kane, etc., are large commercial counties, and required greater facilities for the transaction of business than theretofore existed in them, and to meet this exigency the act of 1857 was passed. ” There are law writers who give a broader definition of the term “vacation” than the one above quoted. Abbott says: “Any continuous authorized sitting of the courts is probably known in most of the States as a term. ” (2 Abbott’s Law Die. 552.) Bouvier defines “term” as “the space of time during which a court holds a session.” Burrill says, in defining the word vacation: “In practice: intermission of judicial proceedings ; the recess of courts; the time during which courts are not held. ” He also gives, as one of the definitions of the word, that quoted above from Jacobs. Wharton defines the word vacation: “Intermission of judicial proceedings, or any other stated employment; recess of courts or senates. ” The statute in question is a remedial one, and a point to be considered in the construction of all remedial statutes is, the old law, the mischief, and the remedy; and it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy. (1 Blackstone’s Com. 87.) As was said in Railroad Co. v. Dunn, 52 Ill. 260: “The rule in^construing a remedial statute, though it may be in derogation of the common law, is, that everything is to be done in advancement of the remedy that can be done consistently with any fair construction that can be put upon it.” In accordance with what was said in Middleton v. White, as before cited, greater facilities in the taking of judgments by confession were required than was afforded by the former law limiting the taking of such judgments to open court in term time, to meet which exigency the 18th section of the statute of February 22, 1872, was enacted, authorizing judgments by confession in vacation, as well as in term time. That is, practically, to allow judgments to be confessed at any time, as, according to the practice which had before prevailed, it would, essentially, always be either term time or vacation. We would not be understood as holding that under this act, vacation means all the time the court is not in actual session, or that it embraces .the time of adjournment from day to day; but we are clearly of opinion that where there is the adjournment of court for any such period of time as is found in the present case, the true construction of this 66th section of the Practice act requires that the broader definition which we find of the term “vacation” should be adopted, and that the time of recess should be considered as in vacation, for the purpose of admitting the taking of judgments by confession. This we regard as the practical and reasonable interpretation, and the one that should be given in furtherance of the intention of the act, and in advancement of the remedy which it seeks to give. The propriety of this construction finds illustration in the condition, as counsel for defendants in error state, which existed in the circuit from which this cause comes, at the time of the preparation of their brief,—April 16, 1884. It is said that on that day, in three of the six counties constituting the circuit, sessions of court were being held by judges present; that in the three other counties the courts stood adjourned, but not finally, under the judge’s order. Under the construction contended for by counsel for plaintiff in error, judgments by confession could not at that time have been taken in the three latter counties in which the.courts stood adjourned, because it was term time there, although the judges of the circuit were bolding actual sessions of their courts in the other three counties. Manifestly, such was not the intention of the act. The term time of the courts in that circuit was in the counties where the courts were being actually held, and in the other counties it was in reality vacation, within the intendment of this 66th section of the Practice act, so as to admit the taking of judgments by confession as in vacation. To hold otherwise would be to adopt a legal fiction, and give it effect over what was the real condition, to the denial of the enlarged remedy which was intended to be given by the statute. A point is made that the clerk of the circuit court had no authority to enter a judgment by confession in vacation without an order of the judge directing,it to be done. It has been repeatedly held that the entry of a judgment in vacation is not a judicial act. ([Durham v. Brown, 24 Ill. 93; Ling v. King, 91 id. 571.) With us the judge has no power to make orders in vacation, unless it be conferred on him by statute. (Ling v. King, supra.) The statutes giving powers to the judges in vacation do not include the power to order the entry of judgments by confession. It is true the statute does not - in terms authorize the clerk to enter up the judgment; but as it provides that judgments may be confessed in vacation, it by necessary implication gives such authority. Because in the several local laws authorizing judgments by confession, which had theretofore been passed for the benefit of particular named counties, there was the provision that such judgments might be entered “upon filing the proper papers with the clerk of the court, ” it is argued that the absence of such a provision in this general act denotes the purpose not to confer upon the clerk the power to enter such a judgment. This can not truly be said, in view of the fact that the want of such power would render the act of no effect, and the omission of that provision signifies no more, we think, than that it was deemed superfluous to express that which was necessarily implied. The judgment of the Appellate Court must be affirmed. Judgment affirmed.