Washington Park Club v. Baldwin ex rel. McClelland

Mb. Justice Gaby delivebed the opinion of the Coubt. With slight additions we accept the statement of facts that is in the appellant’s brief. October 17,1891, John W. McClelland, in a suit by attachment in the Circuit Court, recovered a judgment against the appellee for §3,426.06. The appellant had been summoned as a garnishee, had not answered, and on that day a conditional judgment, in favor of the appellee for the use of McClelland, was entered for “ the sum of three thousand four hundred and twenty-three dollars and six cents, being the amount of the original judgment rendered herein, together with all plaintiff’s costs and charges in this behalf expended, unless the said garnishee, after being duly served with scirefacias to be issued, shall show cause, if any it has, why the above conditional judgment should not be made final and execution issued, accordingly.” A scire facias was served on the appellant October 22, 1891, and nothing more was done in the case until July 11, 1893, when the appellant filed with the clerk of the court a paper purporting to be a motion to set aside the conditional judgment for several reasons which need not be repeated. Then nothing more was done until November 19, 1894, when the appellee took judgment as follows: “ This day again comes the plaintiff to this suit, by his attorney, and it appearing to the court that due personal service of scirefacias issued in said cause has been had on Washington Park Club, garnishee herein, for at least ten days before the first day of this term, and it being called comes not, nor does any person for it, but herein it makes default, which is on motion of plaintiff’s attorney ordered to be taken, and the same is hereby entered herein of record; wherefore the conditional judgment rendered herein against said garnishee ought to be made final. Therefore it is considered by the court that the defendant, for the use of the plaintiff, do have and recover of and from the said Washington Park Club, the sum of three thousand and four hundred and twenty-three dollars and six cents interest thereon from October 17, 1891, being the amount of the original judgment rendered herein against the defendant at the date aforesaid, together with all plaintiff’s costs and charges in this as well as in that behalf expended, and have execution therefor.” It is now insisted: 1. That the appellant was entitled to notice before entering the final judgment. 2. That final judgment should not have been entered without first disposing of the motion of July 11,1893. 3. That the judgment is excessive by including the uncertain amount of costs and charges. The first of those points is based upon a rule of the Circuit Court shown in the bill of exceptions, as follows: “ No motion will be heard or order made in any cause without notice to the opposite party when an appearance of said party has been entered, except where a party is in default or where the cause is reached on the calendar.” Although the appellant had been summoned on the scire facias to the November term, 1891, and had not answered, yet it could not be said to be in default, if it had made a motion which, if sustained, would dispense with an answer. Can a paper, purporting to be a motion in a cause, filed with the clerk of the court without notice to anybody interested, and which, so far as this record shows, may never have come to the knowledge of the court or opposing counsel, be a motion that stops proceedings, and which may thereafter be exhumed and held to be sufficient cause for undoing all that, except for that paper, was regularly done ? That such a paper is not a motion is old law. Prall v. Hunt, 41 Ill. App. 140; 3 Bl. Com. 304. Barristers were called in the order of their seniority and each made his own motion, if he wished to do so, and but one in one day. 1 Burr. 57. There is no allusion in books of practice to such a course as was here pursued. See 3 Chit. Gen. Pr. 573. For the purpose of making a calendar of a class of motions called “enumerated” the old Supreme Court of New York had a rule for filing “ a note of issue.” Graham, Pr., 671. “ A motion is properly an application for a rule or order made viva voce to a court or judge.” Making out and filing an application “ is not to make a motion.” ' “ The attention of the court must be called to it.” People v. Ah Sam, 41 Cal. 645. In Hall v. Hess, 27 Ill. 411, Caton, J., disparaged even a motion for new trial where the course pursued resembled that in this case. The case last cited disposes of the second point upon one ground, and Home Flax Co. v. Beebe, 48 Ill. 138, and Deere v. Lewis, 51 Ill. 254, do the same thing upon another, i. e., that the judgment entered overruled the motion. The third point is based upon a wrong reading of a clumsily written record. The words “interest thereon from October 17, 1891,”'must be rejected as surplusage. They have in the connection in which they are used, no definite meaning, and besides it is not to be left to the sheriff holding an execution to determine the amount of the judgment. The statute authorizes him to collect interest from the date of the judgment, and usage in this State has justified a judgment for costs without stating the amount; but in general, a money judgment must be for a sum fixed. Black on Judgments, Sec. 118. The judgment in this case is only for a fixed sum. The recital “ being the amount,” etc., while not true in fact, means that the sum named is the amount of the original judgment and costs. There is no error and the judgment is affirmed.