Knights v. Martin

40 N.E. 358, 155 Ill. 486

• Court: Illinois Supreme Court
• Decided: April 2, 1895
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court:

This was a motion to quash an execution isshed upon a judgment confessed in vacation, and to set aside the judgment. Shortly after the judgment was confessed the judgment debtor executed to appellee a deed of assignment of all his property for the benefit of his creditors. The motion was made in the name of the judgment debtor and his assignee, but before decision the debtor formally withdrew the motion as to himself, and it was afterwards prosecuted by the assignee. The Fulton circuit court, at the December term thereof, 1893, denied the motion. The assignee thereupon appealed to the Appellate Court, which reversed the judgment of the circuit court and remanded the cause, with directions to quash the execution. From that judgment appellants bring this appeal.

It appears that when the execution was issued the judgment had not been fully written up—that is, had not been entered in the “journal,” though it had been properly noted and indexed in the judgment and execution dockets, in the fee book and in the index of the court record.

Appellants contend that appellee was not a proper party to make this motion, which was made under section 65, chapter 110, of the Revised Statutes. The assignee takes the same interest and title in the assigned estate that his assignor possessed, and hi§ title will be subject to all the equities that existed in respect thereof in the hands of the assignor, and he may do whatever his assignor might have done in respect of the assigned property if no assignment had been made. (Secs. 1 and 11 of Voluntary Assignment act, Laws of Ill. 1877; Davis v. Chicago Dock Co. 129 Ill. 180.) We are of the opinion that the relationship of the assignee to his assignor and to the assigned estate is such that he may be considered a proper party to make this motion, notwithstanding the rule that no one but a party to a judgment or execution can move to set aside a judgment or quash the execution. Jenkins v. Greenbaum, 95 Ill. 11; Conkling v. Bidgely, 112 id. 36; Roche v. Beldam, 119 id. 320; Baker v. Barber, 16 Ill. App. 621.

It is further contended that it was not competent to show that the formal record of the judgment, which purports to have been written when the judgment was confessed, was in fact not completed until two days later, and after the execution was issued. Evidence to show that the execution was issued and in the hands of the% sheriff before the judgment was actually written up was relevant and proper. This would not contradict the record. So much of the evidence as tended to show, further, that the judgment was written up on a day different from the issuing of the execution, was improper. Cummins v. Holmes, 109 Ill. 15; Ling v. King, 91 id. 571; Baker v. Barber, 16 Ill. App. 621.

Disregarding the incompetent"portion of the evidence, it is urged that it was not shown that the execution was issued before the judgment was entered up, appellants contending that the mere fact the judgment had not been formally entered in the record before the execution was issued was a matter of no importance; that such entry was unnecessary, inasmuch as the judgment had been noted in the judgment and execution dockets, in the fee book and in the index of the court record, and that such entries in those books were alone sufficient to constitute a valid judgment. On the authority of the cases last above cited we take a different view of the ' question from that here contended for by appellants, and must hold that in respect to this judgment entered by the clerk in vacation, the entry in the “record” was indispensable to constitute a valid judgment. The execution here in controversy was therefore void.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.