Brown v. Hathaway

By the Court — McMillan, J. — The first error assigned is that the entries or memoranda in the Register were inadmissible to [307] prove a judgment; or if admissible at all, were clearly insufficient. On the trial-the plaintiff in error objected to the record offered to prove the judgment, which objection was overruled, and the record admitted, to which the plaintiff in error excepted. By sec. 40, chap. 72, Comp. Stat., p. 630, it is provided that “ the ck-rk must keep among the records of the Court a register of actions; he must enter therein the title of the action with brief notes under it from time to time of all papers filed and proceedings had therein.” By secs. 72 and 73, ch. 61, Comp. Stat., p. 566, “the clerk must keep among the records of the Court a book for the entry of judgments to be called the judgment book.” “The judgment must be entered in the judgment book, and must specify clearly the relief granted or other determination of the action.” Section 76, of the same chapter, provides that the judgment may be docketed, and shall thereupon become a lien on the real property of the defendant in the county from the time of docketing, and section''IB requires the Clerk to keep a judgment docket, and prescribes the mode of docketing. It will, be perceived that there are three books to be kept by the Clerk: 1st, a register of actions, containing minutes of all proceedings in each action; 2d, a judgment book in which judgments shall be entered ; and 3d, a judgment docket in which the judgment shall be docketed. An examination of the record offered in evidence in this case, as contained in Schedule A, in the paper book, in view of these provisions of the statute, satisfies us that it is a minute of the proceedings in the action. That this is the character of all the entries except the last, cannot for a moment be doubted. The entry referring to judgment is not dated, nor is it in form a judgment, but like each entry preceding it, and with which it is connected, it is in form a mere note or memorandum of the action of the Court, which is required to be kept by sec. 40, chap. 12, cited ante, and is clearly distinguishable from the entry of the judgment as required by sec. 12, chap. 61. It must therefore be regarded as a mere minute of the entry of judgment. [308] Docket entries which are merely minutes of proceedings are not admissible as evidence of a judgment. 4 W. C. C. R., 698. As the statute expressly requires that the judgment shall be entered in the judgment book, and specify clearly the relief granted, or other determination of the action, the record offered was incompetent to prove the judgment, and erroneously admitted for that purpose. In the absence of proof of the judgment, of course all the evidence based upon the fact of a judgment was inadmissible. Proof of the judgment being vital to the plaintiff’s case, and no competent evidence of judgment having been offered, he could not recover. TIig judgment must therefore be reversed.