Hunter v. Empire State Surety Co.

Mr. Presiding Justice Fitch delivered the opinion of the court. In the opinion filed by the Supreme Court (Hunter v. Empire State Surety Co., 261 Ill. 335), the court held that the constitutional questions raised by plaintiffs in error are not involved in this suit, for the reason that the proceedings and judgment in the replevin suit, even if erroneous, were not void and cannot be • collaterally attacked in this suit on the replevin bond. It is urged that the trial court erred in admitting in evidence the order—called by counsel for plaintiffs in error an “expanded judgment”—entered in the replevin suit on March 15, 1912. The ground of the objection is that this order was entered, “long after the court had lost jurisdiction of the replevin suit,” by a judge who did not try the case, and was therefore (it is said) “a mere nullity.” Counsel for defendants in error objects to the use of the words “expanded judgment.” We see no harm in using those words to express in brief form what was in fact done at the time the order of March 15, 1912, was entered. When the judgment was pronounced, or “rendered,” on April 7, 1909, a memorandum or minute of that fact was written upon the docket, either by the judge who pronounced it, or by his minute clerk. This memorandum or minute, while in abbreviated form, is perfectly intelligible to every lawyer or clerk who is at all familiar with court records and minutes. With this minute as a guide, any clerk who is competent to write court records could readily “expand” it into the technical form of a judgment for the defendant in replevin; and a comparison of the minute with the order of March 15, 1912, shows that the judgment then ordered to be entered of record nunc pro tunc was in fact the judgment actually rendered on April 7, 1909, as shown by the minute. There is a clear distinction recognized by the authorities between the rendition of a judgment and the entry of it. 1 ‘ The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and verdict. The entry of a judgment is a ministerial act which consists in spreading it upon the record or writing it at large in a docket or other official book.” (23 Gyc. 835.) In construing a statute using both these words, our Supreme Court said: “The words ‘rendered’ and ‘entered’ are plainly used antithetically, and each in its distinctive correct legal sense,—‘rendered’ being used to indicate the giving of judgment, and ‘entered’ to indicate the act of placing the judgment rendered on record,—in other words, enrolling or recording it.” Blatchford v. Newberry, 100 Ill. 484, 489. The same distinction was pointed out by Mr. Justice Moran, in Jasper v. Schlesinger, 22 Ill. App. 637, in the following language (p. 641): “It could not be said that there was no judgment because the judgment order had not been spread out at length upon the judgment record. The judgment is a fact from the moment it is pronounced by the court, and the clerk’s duty is to record such judgment before the final adjournment of the term ‘or as soon thereafter as practicable. ’ R. S., Chap. 25, Sec. 14.” In the same opinion it is also said (p. 640): “It is not the practice of the court in rendering judgment in any case at common law to write out the formal order at length, nor is it the practice for the minute clerk to write out such order in his minutes, but such memorandum is made as clearly indicates what the judgment of the court is.” The entry that was made on the docket of the Municipal Court on April 7, 1909, was a memorandum of that character. It was not a judgment. The judgment was a fact, however, from the moment it was pronounced by the court, and the memorandum made at that time, while it was neither itself the judgment nor a formal record of the judgment, was a sufficient minute of the proceedings to enable the clerk to enter the judgment of record in proper form. It has been repeatedly held that where such a memorandum or minute is made by the clerk or the judge upon some official book, document or paper at the time a judgment is pronounced, the court may at any time thereafter, by an order entered nunc pro tunc, cause the record to show in proper, technical form the judgment that was, in fact, rendered by the court. Gebbie v. Mooney, 121 Ill. 255; Chicago, M. & St. P. Ry. Co. v. Walsh, 150 Ill. 607; Metzger v. Morley, 197 Ill. 208. In the case last cited, the court quotes with approval the following from Freeman on Judgments, sec. 61: “The entry of a judgment nunc pro tunc is always proper when a judgment has been ordered by the court but the clerk has failed or neglected to copy it into the record.” The only qualification of this rule is that the subsequent order must be based upon “some note or memorandum from the records or quasi records of the court, or by the judge’s minutes, or some entry in some book required to be kept by law, or in the papers on file in the cause.” Wesley Hospital v. Strong, 233 Ill. 153. In Metzger v. Morley, supra, the trial judge made the following entry upon his minutes at the time of the trial: “Trial by jury and verdict for $1521.09, and motion by defendant for new trial; motion overruled and judg. on verdict for $1521.09; and appeal prayed and allowed; bond in $3,000 in 20 days, to be approved by clerk by agreement; b. of e. in 120 days.” At the same time, the clerk made the following entry: “And judgment on the verdict for $1,521.09.” Three years later, upon motion and due notice, and upon an inspection of these minutes, the court entered an order in which, after reciting that a judgment had been “pronounced and rendered” on a certain day three years before, in favor of the plaintiff and against the defendant, for the sum of $1,521.09, and costs, and that the clerk “had failed to enter of record said judgment in full and proper form,” it was ordered that the clerk enter said judgment of record “in full and proper form” as of the date said judgment was, in fact, “pronounced and rendered.” On appeal this order was sustained. The Supreme Court held that the minutes of the judge and the clerk were amply sufficient to authorize the entry of the order and judgment nunc pro tuno, saying: “To hold otherwise would be to deprive the court of the power to make its record speak the truth under any and every circumstance.” The order in question in the present case is similar to the order entered in the case last cited, and upon the authority of that case and the others cited above, we think there was no error in admitting the so-called “expanded judgment” in evidence. The nunc pro timo order was the record evidence of the judgment as pronounced by the court on April 7, 1909. The mere fact that such order was entered by another judge than the one who actually tried the case is immaterial. We see no reason—and none has been suggested—why any judge of the Municipal Court may not direct the entry of an order of this character in any case in which such a minute has been preserved. The trial judge could only cause such a record to be made or amended in pursuance of some sufficient note or memorandum found upon the records or quasi records of the court. He could not do so from his personal recollection. Therefore, the judge who entered the order had before him the same means of information and had the same authority in the matter as the trial judge. It is next urged that the trial court erred in admitting in evidence the motion of Harold Gillette in the Appellate Court to set aside the judgment of affirmance, and the order of that court denying said motion. It was proper to show that the proceeding in the Appellate Court had been finally disposed of, and, while the evidence in question was perhaps unnecessary, we fail to see how the defendants were, or could be, in any manner prejudiced thereby. Counsel for plaintiffs in error say that “the jury was bound to get the impression that the Appellate Court was against the position taken by the defendants.” It appears that the grounds of the motion urged in the Appellate Court were the same, in substance, as those which the Supreme Court held were not involved in this case. Hence, if it be assumed that the jury might have received the impression stated, that impression was evidently correct, and not a good cause of complaint. It is insisted that the court erred in permitting one of the plaintiff’s attorneys to testify for the plaintiff over objection. There is no merit in the contention. While the practice of allowing attorneys to testify in cases in which they appear as counsel has often been criticised and is not to be encouraged, yet they are not disqualified, and an objection to such testimony goes only to its weight and not its competency. Wetzel v. Firebaugh, 251 Ill. 190; Wilkinson v. People, 226 Ill. 135. Furthermore, the witness in question withdrew his appearance as an attorney in this case, and most of his testimony related to the amount of work done by the attorneys in the replevin suit, which it would probably have been difficult to prove by any witness not subject to the same objection. It is next claimed that the court erred in admitting evidence as to the value of the services of two attorneys in the replevin suit, and in instructing the jury that they were to determine whether the services of two attorneys were reasonably necessary in defending the replevin suit. There was evidence tending to prove that there was more work to do than could be properly done by one attorney, and that the defendant in the replevin suit authorized one of the attorneys to employ his partner to assist in the trial. Under the circumstances, we think there was no error in the ruling of the court in this particular. One Robert P. Tyk was called by the defendants as one of three witnesses as to the value of the automobile. He testified that in 1909 he was an “automobile repair man” at a garage in Chicago where the machine in question was kept; that two years later he engaged in the business of buying and selling automobiles, but prior to that time he had never bought or sold an automobile nor did he know of any sale that had been made of a car like the one in question. The court refused to permit him to testify as to the value of the machine in 1909, on the ground that no sufficient qualification had been shown. We think there was no error in the ruling; for the witness did not claim to know anything (except from hearsay) about the value of automobiles similar to the one in question at the time the same was taken on the replevin writ, and any estimate of value he might have given under such circumstances would have been a mere guess, tending rather to confuse than to enlighten the jury. It is claimed that the court erred in refusing to permit the defendants to make a formal offer, at the close of all the evidence, to return the automobile. The defendants did not attempt to show that any such offer had been made prior to the trial, except as such an offer is contained in one sentence of the second affidavit of merits. The offer made in that affidavit was, “which automobile the defendants hereby tender and offer to return to the plaintiff if it should he found and held that said replevin judgment is valid.” As defendants claimed, by another sentence of the same affidavit, that the judgment was invalid, the offer so made was not an unconditional offer, and even this offer was omitted from the amended affidavit of merits that was filed later. In our opinion, the offer to return was properly excluded. It is urged that the court erred in denying the motions made at the close of the plaintiffs’ evidence and at the close of all the evidence to instruct the jury to find for the defendants. This alleged error raises only the question whether there was any evidence in the record fairly tending to prove all the material averments of the plaintiffs’ declaration, or statement of claim. Libby, McNeill & Libby v. Cook, 222 Ill. 206. There can he no question, we think, that there was evidence tending to support all the material allegations of the statement of claim. It follows that the court did not err in refusing the motions. An objection is made, but not argued, in the briefs as to the allowance of interest. No error in this respect is pointed out, and we see none. Interest was recoverable by the express terms of the statute. R. S., ch. 74, sec. 2 (J. & A. ¶ 6691). It is finally suggested, rather than argued, that the court erred in overruling the defendants’ motion for a new trial. The bill of exceptions does not show that any such motion was made. The clerk’s transcript of the judgment purports to recite that such a motion was made and overruled, but .it has been so frequently and uniformly held that such a recital is not properly a part of the record that no citation of authority is necessary. Therefore, the question whether the verdict was contrary to the preponderance of the evidence was not properly preserved for review. Finding no reversible error in the record, the judgment of the Municipal Court will be affirmed. Affirmed.