Robertson v. Donelan

127 S.W. 754, 138 Ky. 149, 1910 Ky. LEXIS 53

• Court: Court of Appeals of Kentucky
• Decided: May 5, 1910
• Status: Published

Opinion

Opinion of the Court by

Judge Settle

Affirming.

The appellee, M. F. Donelan, a justice of the peace, on complaint of the appellee, Robert Porter; issued a writ of forcible detainer against the appellant, J. M. Robertson, who was alleged to be wrongfully in the occupancy of certain real estate in Campbell county of ydiich Porter was the owner and claimed to he entitled to the immediate possession. Appellant was duly served with the writ, and when the inquisition was held thereunder neither party demanded a jury. After the evidence was introduced and argument- closed, the magistrate announced, in the hearing of the parties and counsel, that his judgment was, or would be, for the defendant (appellant); hut no judgment was then entered. Both parties and counsel left the place of trial, however, under the belief that the judgment would he entered as announced. After this announcement, and before entering any judgment, the magistrate changed his mind, and, following such change, entered judgment on the docket or hook kept for that purpose in favor of the appellee Porter, whereby appellant was adjudged guilty of 'the forcible detainer complained of, and appellee entitled to the immediate possession of the land. Following the entering of the judgment ánd upon the afternoon of the day of the trial, the magistrate sought appellant and his counsel to advise them of his change of mind, and that he had entered judgment in conformity to' such change, but was tin-able to find either of them. 'During-the same afternoon he reported his change of opinion, and how the iudgment had been ' entered, to appellee Porter’s counsel, and the latter on the following morning informed appellant’s counsel of it. . On that day appellant executed a proper bond and filed a traverse with the magistrate and returned the papers in the forcible detainer proceedings to the office of the clerk of the circuit court of Campbell county, within 10 days, for a trial of the traverse in that court. After filing the traverse, appellant brought this action in the court below against the appellee Donelan, as justice of the peace, and the appellee Porter, praying that the former be compelled by mandamus to enter judgment o'f the forcible'detainer proceedings in accordance with his oral announcement made at the inquisition. Upon the hearing the writ of mandamus was refused, ‘ and the petition therefor dismissed. From the judgment manifesting that ruling of the circuit court, this appeal is prosecuted.

It does not appear from the- record before us what disposition, 'if any, was made of the traverse in the circuit court; nor is it material to the decision of this appeal how it was determined. Mention is here made of it only for the purpose of calling attention to the fact that the refusal of the circuit court to grant the writ of mandamus asked by appellant left unimpaired his right to rely upon the customary remedy afforded by the traverse; the change of opinion on the part of the trial justice having been made and his judgment entered upon the day of the inquisition and in ample time for appellant to resort to that remedy.

It is a rule of the law that in all cases, “where full and ample relief may be had, either by appeal, writ of error, or otherwise, from the judgment, decree, or order of the subordinate court, mandamus will not lie, since the courts will not permit the functions of an appeal or writ of error to be usurped by the writ of mandamus. * * It may therefore be laid down as the universal rule, prevailing in both England and.America, that the existence of another remedy adequate to correct the action of the inferior court will prevent the relief of - mandamus. ’ ’ Shine, Presiding Judge, v. Kentucky Central R. R. Co., 85 Ky. 177, 3 S. W. 18, 8 Ky. Law Rep. 748. But in our view of the case further discussion of this feature of it is unnecessary. The justice of the peace holding the inquest required by the writ of forcible detainer had the legal right, under the circumstances, attending his act, before entering judgment, to change the orally expressed opinion or finding announced by him on the trial. Justices’ courts are courts of records.' Section 1088, Ky., St. (Russell’s St. section 3102). Therefore they speak and are judged by and through their -records. It is indispensable to the validity of a judgment that it shall be entered in the book provided for that purpose, and signed after being so entered by the presiding judge or justice of the court. Ewell v. Jackson, 129 Ky. 214, 110 S. W. 860, 33 Ky. Law Rep. 673; Commonwealth a. Chambers, 1 J. J. Marsh, 108; Raymond v. Smith, 1 Metc., 65, 71 Am. Dec. 458; Fristoe v. Grillen, 80 S. W. 823; Johnson v. Commonwealth, 80 Ky. 377; Sheppard v. Sheppard, 128 Ky. 87, 107 S. W. 273, 32 Ky. Law Rep. 942.

While, as held in Hicks v. Parks, 30 S. W. 202, 17 Ky. Law Rep. 37, and numerous other cases, this court has declared it will, review with liberality the proceedings in justices’ courts, it has never gone to the length of saying that a mere oral expression of opinion on the part of' the justice-, made at the close of a trial, indicating how. he had decided or would decide the case, should be allowed -to contradict -or supersede a ■ judgment of different meaning and effect, which the justice, on the day of the trial and following a change in his oral opinion, had himself entered in his judgment book and dnly signed, as his judgment in the case. Manifestly, an orally expressed opinion or finding of any court is subject to change until it has become a written order or judgment ■ of the court; and to hold -otherwise would be- to say that the first impressions of a case on trial received and expressed by the court, however erroneous they might be, must be adhered to and entered as its judgment. Surely, it will not be seriously contended that we should approve such a doctrine. While -it is, of course, desirable that the courts should not be vacillating in the performance of their judicial .functions, ■we cannot withhold from them the right to correct before entry of judgment, errors real or supposed, whether of opinion, conclusion, or ruling, into which they become convinced they have fallen. If such errors are carried into the judgment as entered, they may be corrected or remedied on appeal from the judgment, if the right of appeal be given by law, or in a direct proceeding to vacate or modify it, but not otherwise. Judson v. Gage, 98 Fed. 540, 39 C. C. A. 156; Emery v. Royal, 117 Ind. 299, 20 N. E. 150; Hargrove v. Turner, 108 Ga. 580, 34 S. E. 1; Weber v. Mayer, 4 N. D. 119, 59 N. W. 523, 28 L. R. A. 621; Callahan v. Votruba, 104 Iowa, 672; 74 N. W. 13, 40 L. R. A. 375.

In ascertaining what judgment has been rendered in a case, it is not in the breast of a judge, or to some statement he may have made, or to the memory of others that we must look, but it is to the record, and to the record .alone. It is, however, insisted for appellant that, as the inquisition was had without the intervention of a jury, the announcement from the justice at its conclusion that his judgment was, or woidd be, for the defendant (appellant), was a finding that the latter was not guilty of the forcible detainer charged and of the same'effect.as the verdict of a jury; and that as, in a case of a verdict by the jury, the court could only have entered a judgment in accordance with the verdict, it was its duty, after making the announcement in question, to enter judgment in accordance with the finding announced, and he was, therefore, without power to enter the judgment declaring appellant guilty, instead of not guilty, of the forcible detainer complained of. The error in this argument lies in the attempt to make of the justice’s oral announcement a finding conclusive of the appellant’s innocence of the forcible detainer complained of, as if, for the purpose of determining his guilt or innocence, the justice acted as a jury, and, having manifested his determination. of that matter by the announcement in .question, he transformed or restored himself into a court for the sole purpose of entering a judgment that would accord with the announcement. The justice did not sustain such' a dual relation to the case, and the oral announcement which - was retracted by his change of opinion and the judgment later entered was not equivalent to the finding of a jury, or conclusive of the appellant’s innocence.

Section 454 of the Civil Code of Practice, as amended, provides: “In the trial of writs of forcible detainer or forcible entry and detainer, if neither party in person or by‘agent or attorney, demand a jury, the trial thereof shall be by the judge or justice presiding ; and in such an event the judge or justice shall try all questions arising; whether of law or of fact. No such writ shall direct the summoning of a jury, and the sheriff or other officer to whose hands such a writ may ‘come to do execution thereof shall not summon a jury in such proceeding, unless he be by either party notified in writing that a jury is - demanded. At the calling of the cause for trial either party may demand a jury. The right to traverse the finding of a judge or justice shall be the same as if the verdict had been rendered by a jury.”

It will be observed that the section, supra, gives the judge or justice presiding in cases of forcible entry and detainer, or either, the power, when a jury is not demanled, to try all questions arising, whether of law or fact. The finding of a judge or justice on the whole case is, therefore, his judgment, and- requires some entry to complete it, and although, as decided in Swanson v. Smith, 117 Ky. 116, 77 S. W. 700, 25 Ky. Law Rep. 1260, he may not in a case like this grant a new trial or control his judgment 10 days — the traverse allowed the unsuccessful party being an adequate remedy — lie bas in such a case as in all others, discretionary power, and consequently the right to. determine what judgment shall be entered.

If the case is tried before a jury, and they find a. .verdict,. . it is the duty of the justice to enter his judgment according to the verdict; but where, as in the case before the appellee Donelan, the trial is before the justice without the intervention of - a jury, .while bound to enter some judgment, that officer has the power and discretion to determine what judgment shall be entered, and-the.entering of the judgment is the culminating act of his exercise of jurisdiction in the case. When entered-the judgment, becomes the historical and only evidence of what was done, and decided in the case, and, until reversed or. set aside, it is conclusive of the rights of all the parties to it. While the judicial act of deciding a case must precede the entering of a judgment,, and it is in that sense a thing apart from it,, the judgment is the record of the judicial act and the official pronouncement of the court upon the issues and. questions submitted to its decision, and, because it is such a record, it cannot be impeached by proof of an oral declaration made by the court before its entry expressive of an intention to render a different judgment.

A careful reading of the cases cited and relied on by appellant will, we think, show that they are not in conflict with the views we have expressed.

Being of opinion, that the circuit court properly refused the mandamus asked by appellant, the judgment is affirmed.