Summary
In Hower Corp. v. Vance (1945), 144 Ohio St. 443, 451, 59 N.E.2d 377, the Ohio Supreme Court held that the provision of former General Code 11656 (now R.C. 2329.02) regarding the page and journal entry is for the convenience of the public and is directory rather than mandatory, and that compliance with those requirements of the statute is not vital to the validity of the certificate of judgment.
Summary of this case from In re PurdyOpinion
Nos. 30034 and 30035
Decided February 7, 1945.
Judgments — Municipal Court of Akron — Second class action — Entry upon half-sheet constitutes journalization and record of judgment, when — Section 11604, General Code.
Where an entry of a judgment of the Municipal Court of Akron, for a sum less than $100, made upon a half-sheet of such court and approved by the endorsement of a judge thereof, is, as so endorsed, recorded by the clerk in the civil docket of the court, in which, by rule of court, there is also made a final and complete record of a case, there is a journalization and record of a judgment within the purview of Section 11604, General Code.
APPEALS from the Court of Appeals of Summit county.
Case number 30034 is an appeal from a judgment entered by the Court of Appeals of Summit county reversing a judgment of the Common Pleas Court of that county overruling a motion by Fred S. and Ollie Vance, hereinafter called the appellees, to declare null and void a certificate filed therein of a judgment rendered in the Municipal Court of Akron in favor of The Hower Corporation, hereinafter called the appellant.
Case number 30035 is an appeal from a judgment entered by the Court of Appeals of Summit county reversing a judgment of the Common Pleas Court of that county dismissing the petition of the appellees to enjoin the enforcement of the certificated judgment above referred to.
The facts which are the basis of these appeals may be stated as follows:
Section 1579-516, General Code, provides in part:
"4. To expedite the business of the court and promote the ends of justice, the judges from time to time shall adopt, publish and revise rules relating to matters of practice and procedure not otherwise provided for in this act."
Purporting to act under the rule-making power of that section of the General Code, the judges of the Municipal Court of Akron adopted certain rules governing the practice and procedure of that court.
Rule 2 provides for the classification of cases in that court and is as follows:
"All cases shall be classified as follows:
"First class cases. All actions for money in this court involving $100 or more and all other actions not formerly triable by justices of the peace.
"Second class cases. All actions for money in this court involving less than $100 and all other actions formerly triable by justices of the peace."
Rule 4, relating to dockets and records, provides as follows:
"The clerk shall prepare and keep the following dockets and books which shall be the public records of the court:
"(1) A 'civil docket' in which shall be entered in consecutive order, all civil actions brought in said court, together with all proceedings had therein, properly dated, which docket shall be the final and complete records of said cases, except as hereinafter provided.
"(5) A 'journal' in which shall be recorded the orders of the court, made in cases wherein extended records are ordered to be made, or are demanded by a party. * * *
"(6) A 'half-sheet' which shall be a loose-leaf sheet, for each case, and shall be a copy of the civil docket * * *, and kept in the files with the papers in the case. Each transaction and a minute of each order and judgment of the court in the case shall be made upon said sheet by the trial judge, or the clerk or deputy clerk under said judge's direction." (Italics ours.)
Rule 6, relating to procedure, provides that:
"All actions for money, where the amount prayed for in the petition or in the cross-petition is $100 or more, shall be governed by the rules of procedure as set forth in the Ohio General Code in governing the Courts of Common Pleas, insofar as they are consistent with the act creating this court and the rules hereby adopted.
"All other actions shall be governed by the rules and regulations set forth in the Ohio General Code for governing justices of the peace courts, insofar as they are consistent with the act creating this court and the rules hereby adopted."
Under the rules and practice of the court, in cases of the second class, the clerk, as the case proceeds, records in the civil docket, which also serves as a journal, the memoranda made by him on the half-sheet as to filings, etc., and the memoranda made by the court on the half-sheet comprehending the action of the court throughout the case, including the entries of orders and judgments.
On May 16, 1940, appellant brought an action against appellees in the Municipal Court of Akron to recover the sum of $74.92 with interest thereon from May 16, 1940.
On May 23, 1940, a default judgment was entered on the half-sheet of that court, which entry was attested and approved by the judge by his signature "Powers, J.," in the following words and figures.
"5/23/40
"Case called, defendant not appearing. Default judgment for plaintiff for $75 and also $5.85 costs of suit."
This entry so endorsed on the half-sheet was by the clerk recorded in civil docket 395, page 203088, of the records of the Municipal Court of the city of Akron.
On August 14, 1943, a certificate of judgment was issued by the clerk of the Municipal Court of Akron, which certified that a judgment was rendered in favor of appellant against appellees for $75 and costs in the sum of $6.20 with interest at the rate of six per cent from May 23, 1940. On August 16, 1943, such certificate of judgment was filed in the office of the clerk of the Common Pleas Court of Summit county, and was, by the clerk, recorded in judgment docket 4, page 347, of the records of such court, and numbered JL-2430. Execution on such judgment was caused to be issued by appellant and was returned by the sheriff unsatisfied. An affidavit in aid of execution was filed in the Common Pleas Court of such county on the certificate of judgment, and an order issued to The Firestone Tire Rubber Company to answer respecting its indebtedness to Fred S. Vance.
On August 28, 1943, the appellees filed a motion in the Common Pleas Court of such county, in cause No. JL-2430, for an order canceling and holding null and void the certificate of judgment, and for an order dissolving the proceedings in aid of execution, for the reason that no judgment had been journalized or entered by the Municipal Court of Akron in the original case in which the certificate of judgment was issued.
On August 28, 1943, the appellees filed a petition in the Common Pleas Court of Summit county, in cause No. 143820, praying for a restraining order and injunction against the enforcement of the judgment in question for the reason that although the municipal Court of Akron is a court of record, no journal entry of the judgment was ever-made, approved or spread upon the journal of that court.
On October 15, 1943, in cause No. JL-2430, the Common Pleas Court overruled the motion to hold the certificate of judgment null and void, and on October 18, 1943, in cause No. 143820, dismissed the petition for injunction and gave judgments in both cases, for appellant.
On April 20, 1944, the Court of Appeals reversed such judgments and entered judgments for the appellees.
These cases are now in this court for review by reason of the allowance of motions to certify.
Mr. M. Louis Palmieri, for appellant.
Mr. E.F. Mooneyham, for appellees.
The sole question in these cases is whether a judgment in the original action in the Municipal Court of Akron was sufficiently entered, journalized and recorded to meet the requirements of the law with reference to the rendition of judgments.
The appellees insist that since by Section 1579-497, General Code, the Municipal Court of Akron is made a court of record, the judgments of that court must be entered exclusively in the manner required by the Code of Civil Procedure and especially by Section 11604, General Code, which provides:
"All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action. The entry must be written into the journal as soon as the entry is filed with the clerk or directed by the court and shall be journalized as of the date of the filing of said entry or of the written direction by the court."
Together with the claim that all judgments of a court of record must be rendered in accordance with the provisions of Section 11604, General Code, above quoted, appellees call attention to the numerous holdings of this court to the effect that a court of record renders a judgment only when a journal entry is prepared, approved by the court and filed with the clerk for journalization. Industrial Commission v. Musselli, 102 Ohio St. 10, 130 N.E. 32; State, ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St. 477, 26 N.E.2d 1014; In re Estate of Lowry, 140 Ohio St. 223, 42 N.E.2d 987; Krasny v. Metropolitan Life Ins. Co., 143 Ohio St. 284, 54 N.E.2d 952.
This court still adheres to the rule established by those cases. However, the same act which makes the Municipal Court of Akron a court of record, also provides that the judges of that court shall designate the method of keeping the records and shall adopt rules relating to matters of practice and procedure in such court. The act further provides that all laws conferring power and jurisdiction upon the Courts of Common Pleas or justices of the peace to hear and determine certain causes and proceedings, prescribing the force and effect of their judgments or orders, and authorizing or directing the execution of the enforcement thereof, shall be held to extend to the Municipal Court of Akron. However, the act carefully provides an exception to the effect that such laws shall not apply when inconsistent with the jurisdiction conferred upon the court by this act or are clearly inapplicable. See Section 1579-512, General Code.
The provisions of the act creating the Municipal Court of Akron have special and specific application to the problem before this court, and such act having been adopted since the date of the adoption of the Code of Civil Procedure, must be considered as controlling insofar as there is any conflict between them.
Section 1579-505, General Code, which is a part of the Akron Municipal Court Act, among other things, provides that:
"The judges may sit separately or otherwise; shall meet at least once in each month and at such other times as the presiding judge may determine, for consideration of the business of the court; shall prescribe forms; establish a system for docketing causes, motions and demurrers; and designate the method of keeping the records of the court." (Italics ours.)
This court is of the opinion that under the authority given the Municipal Court of Akron by the act creating it and the rules adopted by it as authorized thereunder, the judgment of the court in the original case was sufficiently memorialized and entered, and constituted a valid judgment.
Section 2878, General Code, provides that the clerk of the Common Pleas Court shall keep (1) an appearance docket; (2) a trial docket; (3) a journal; (4) a record; and (5) an execution docket. There is no express inhibition against a combination of two or more of these records in a single record volume so far as physical records are concerned. There is nothing sacred in the names "entry," "journal" or "record." There is nothing to prevent the Municipal Court of Akron from providing that a single record volume may serve as an appearance docket, a journal and a record, all combined. This has been done under the authority of the Akron Municipal Court Act. Such combined record may, and evidently does, serve as a great convenience without prejudice to the litigants or the public. The character and import of the written entry and the record made of it must determine whether it meets the requirements of a journal entry, of journalization, or record of a judgment. Its location in the records is of little moment.
Furthermore, in the opinion of the majority of this court, the entry made on the half-sheet in the original case, under the rules of the Municipal Court of Akron, constitutes a proper judgment entry. A judgment is rendered when a written entry declaring the specific and final action of the court in favor of one litigant and against another is approved by the court and filed with the clerk for journalization. See In re Estate of Lowry, supra.
In the original case the entry was not only filed with the clerk, but, in compliance with the court rule, was recorded by him, thus serving every purpose of journalization and record. In fact, the mechanics followed by the court and clerk constituted a substantial compliance with the provisions of Section 11604, General Code.
At any rate, the judgment entry on the half-sheet, filed in the original case in the Municipal Court of Akron, was sufficient as between the parties. The journalization and record of the judgment entry are necessary only to affect third parties. In the case of Amazon Rubber Co. v. Morewood Realty Holding Co., 109 Ohio St. 291, 294, 142 N.E. 363, Judge Jones, speaking for the court, said:
"A judgment is defined to be the judicial act of the court; its entry on the journal merely evidences the judgment and is wholly the ministerial act of the clerk. * * * When a judgment is pronounced, reduced to an entry, and approved by the trial judge, it at once becomes effective between the parties whose rights have been finally concluded thereby. However, a stranger to the record, such as a bona fide purchaser without notice, is not bound by an approved and filed entry until the same is actually spread upon the journal." See 30 American Jurisprudence, 856, Section 71; Newnam's Lessee v. City of Cincinnati, 18 Ohio, 323, 330, 331; D'Andrea v. Rende, 123 Conn. 377, 195 A. 741; Luikart, Recr., v. Bredthauer, 132 Neb. 62, 271 N.W. 165; Blickle v. Higbee, Probate Judge, 211 Mich. 216, 178 N.W. 680.
Appellees also claim that the certificate of judgment under consideration is void because it does not bear the number of the volume and page of the journal entry as required by Section 11656, General Code. The provision of that section of the code as to page and volume of the journal entry is for the convenience of the public. Such provision is directory rather than mandatory, and compliance with it is not vital to the validity of the certificate.
The judgments of the Court of Appeals are reversed and those of the Common Pleas Court affirmed.
Judgments reversed.
ZIMMERMAN, WILLIAMS, TURNER and MATTHIAS, JJ., concur.
WEYGANDT, C.J., and BELL, J., dissent.
The judgment of the Court of Appeals is correct in my view and by reversing that judgment the majority has overturned a fundamental principle of law which has been firmly established in this state for more than a hundred years.
This court by a uniform line of decisions has held that a court of record speaks only through its journal. A few of the more recent cases wherein that principle is reiterated are: State, ex rel. Voight, v. Lueders, Judge, 101 Ohio St. 256, 128 N.E. 72; Fairchild v. Lake Shore Electric Ry. Co., 101 Ohio St. 261, 128 N.E. 168; Industrial Commission v. Musselli, 102 Ohio St. 10, 130 N.E. 32; Smith v. Smith, 103 Ohio St. 391, 133 N.E. 792; Craig v. Welply, 104 Ohio St. 312,
136 N.E. 143; Cox v. Cox, 108 Ohio St. 473, 141 N.E. 220; Amazon Rubber Co. v. Morewood Realty Holding Co., 109 Ohio St. 291, 142 N.E. 363; In re Fenwick, 110 Ohio St. 350, 144 N.E. 269; Fountain, Recr., v. Pierce, 123 Ohio St. 609, 176 N.E. 444; State, ex rel. Schunk, a Minor, v. Hamilton et al., Judges, 127 Ohio St. 555, 190 N.E. 199; Will v. McCoy, 135 Ohio St. 241, 20 N.E.2d 371; State, ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St. 477, 26 N.E.2d 1014; Elser v. Parke, 142 Ohio St. 261, 51 N.E.2d 711; Brown, Admx., v. L. A. Wells Construction Co., 143 Ohio St. 580, 56 N.E.2d 451, and Squire, Supt. of Banks, v. Guardian Trust Co., 144 Ohio St. 266.
As I interpret the opinion the majority now says that a court of record in a certain type of case may speak through its docket and not its journal. That conclusion is contrary not only to the decisions noted, as well as Section 11604, General Code, but is contrary also to the universally recognized rule.
Under the grant of power contained in Section 1, Article IV of the Ohio Constitution, the General Assembly has created municipal courts in many of the more populous municipalities of the state. Each court was created by special act and each with one exception is declared by the act of its creation to be a court of record.
The Municipal Court of Akron was created and its jurisdiction defined by Sections 1579-497 to 1579-550, both inclusive, General Code.
Section 1579-497, General Code, provides in part "That there shall be and hereby is established in and for the city of Akron a Municipal Court, which shall be a court of record * * *.
Section 1579-516, General Code, grants rule-making power to the judges of that court. Under the authority of that section certain rules were adopted.
Rule 4 of those rules provides in part as follows:
"The clerk shall prepare and keep the following dockets and books which shall be the public records of the court: * * *
"(5) A 'journal' in which shall be recorded the orders of the court, made in cases wherein extended records are ordered to be made, or are demanded by a party."
In a second class case the judgment of the court is not entered on the journal, but instead is entered in the civil docket.
One of the questions here is whether the rule of Section 11604, General Code, is controlling. That section reads as follows:
" All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action. The entry must be written into the journal as soon as the entry is filed with the clerk * * *." (Italics mine.)
Heretofore that statute always has been held to be mandatory and to apply to all judgments in all courts of record.
True that section is found in Part Third, Title IV, Division IV, chapter 4, of the General Code, under the caption "Manner of Giving and Entering Judgment." Nonetheless, the provisions of that section, in my judgment, are made applicable to the Municipal Court of Akron by the provisions of Section 1579-536, General Code, which provides that the clerk of the Municipal Court shall make and keep all journals of the court.
It must be assumed that when the General Assembly created the Municipal Court of Akron and made it a court of record it knew of the existence of Section 11604, General Code, and the construction placed thereon by the courts of the state, and it seems plain that if it was intended that the provision "all judgments and orders must be entered on the journal of the court" should not apply to that court, appropriate language could have been found to convey that intention.
The statute provides that all judgments and orders must be entered on the journal; the rule provides that the orders of the court shall be entered only in cases wherein extended records are ordered to be made, or are demanded by a party.
Here there is a clear conflict between the rule of court and the statute. Under such circumstances I maintain that the statute must prevail and that the rule must fail.
Furthermore Section 11656, General Code, provides in part as follows:
"Any judgment or decree rendered by any court of general jurisdiction * * * within this state shall be a lien upon lands and tenements of each judgment debtor within any county of this state from the time when there shall have been filed in the office of the clerk of the Court of Common Pleas of such county a certificate of such judgment, setting forth the court in which the same was rendered, the title and number of the action, the names of the judgment creditor or creditors and judgment debtor or debtors, the amount of the judgment and costs * * * the date of the rendition of the judgment and the volume and page of the journal entry thereof * * *."
In this case the certificate of judgment filed in the Court of Common Pleas obviously did not and could not meet the requirements of that section in that the volume and page of the journal entry were not set forth.
The question before the Court of Appeals was whether that certificate created a valid and enforceable lien and it was held that no lien was created.
The majority opinion holds that compliance with the clear, mandatory provisions of Section 11656, General Code, is not vital to the validity of the certificate. If that be true the section is a mere nullity and should be repealed.
The majority opinion takes no note of the following language also found in Section 11656, General Code.
"When any such certificate of any judgment of any such court shall be delivered to the clerk of the court of common pleas of any county in this state, the same shall be filed by such clerk, and he shall cause the same to be docketed and indexed under the names of the judgment creditor or creditors and of the judgment debtor or debtors in a judgment docket, which shall show as to each judgment all of the matters set forth in such certificate as herein required."
This language certainly is indicative of the intention of the General Assembly to make the provision of Section 11656, General Code, mandatory and not directory.
By holding that a judgment in a second class case in the Municipal Court may be entered in the civil docket, it is rendered impossible to make the certificate of judgment conform to the statute, and it is also rendered impossible for the clerk of the Court of Common Pleas to comply with the statute in entering such certificate in the judgment docket.
It was urged in oral argument that this rule in some way tended to expedite the business of the Municipal Court.
It should be kept clearly in mind that the rule provides the judgment shall be entered in the civil docket; the statute says it shall be entered on the journal. Who will say that it takes more help, time or energy to enter the judgment on the journal where it does belong than it does to enter the same judgment in the same words in the civil docket where it does not belong. Even assuming that the rule would save help, time and energy, can that be a valid excuse for ignoring the plain provision of the statute? The answer should be an emphatic no.
To hold that the entry of a judgment in the civil docket constitutes journalization within the provisions of Section 11604, General Code, to my mind is closely akin to judicial legislation.
Let us suppose a case where the judgment is entered in the civil docket and thereafter a party demands, under subsection five of rule four, that the judgment be entered on the journal, and let us further suppose that the docket entry and the journal entry are at variance. Will the court speak through its journal or its docket?
Lawyers in the examination of titles to real estate can no longer depend upon the journal to discover a judgment lien but will be required to examine the civil docket in the Municipal Court.
Instead of being a great convenience to the litigants or the public the result reached can lead only to the greatest confusion.
WEYGANDT, C.J., concurs in the foregoing dissenting opinion.