149 Ky. 455
Court of Appeals of Kentucky.
Sept. 25, 1912.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by J. D. Farris and another against John G. Matthews.
From a judgment dismissing plaintiffs' petition, they appeal.

J. D. Farris and I. W. Blair brought an action in the Knox circuit court against the Interstate Petroleum Company and others to recover on a promissory note in the sum of $500. An attachment was prayed for, issued, and levied on certain property belonging to the defendants. A forthcoming bond was executed by the defendants, with John G. Matthews as surety, to the effect that the obligors were bound in double the value of the property, that the defendant should perform the judgment of the court in the action, or that the property or its value should be forthcoming and subject to the order of the court.

This action was brought by plaintiffs, J. D. Farris and I. W. Blair, against defendant, John G. Matthews, to recover on the bond. The petition and amended petition set forth the former action, the character thereof, the fact that defendants were properly before the court and that an attachment issued and was levied on certain described property, and the further fact that judgment for the amount sued for and sustaining the attachment was obtained, which judgment was recorded in the office of the Knox circuit clerk in Order Book F, p. 596. A copy of the judgment, though not certified to or attested, was filed with the petition. The defendant Matthews filed an answer, in the first paragraph of which he denied in terms each of the allegations of the petition and amended petition, including the allegation that a judgment had been rendered in favor of plaintiffs, sustaining the attachment, and adjudging a recovery of the amount sued for. The second paragraph of his answer contains the following allegation: "The defendant, John G. Matthews, for further answer and defense, states that there is a judgment of this court of record, Order Book F, p. 596, entered by the then circuit judge, Hon. H. C. Faulkner, on January 5, 1907, copy of which is filed herewith and marked 'Exhibit A' for identification, which judgment requires that the master commissioner take charge of, sell, and subject to the satisfaction of the claims of the plaintiffs the property taken under the attachment and sued out by them at the time of the institution of their suit, to wit, on January 5, 1905." The answer then goes on to allege that said property was then and had since been in the jurisdiction and control of the officers of the court, but that by delay and lack of care and protection, and lapse of time, without any fault or act on the part of the defendant Matthews, the property had depreciated in value, and had been wasted and carried away, etc. On a trial, the clerk of the Knox circuit court introduced in evidence the order book containing the alleged judgment. It developed that the orders for the day containing the judgment in question were not signed by the presiding judge or any judge, and that the adjourning order of the day, "Court then adjourned until court in course," was not signed. At the conclusion of the plaintiffs' evidence, defendant asked a peremptory instruction on the ground that, as the judgment in question was not signed by any judge, it was void, and, there being no judgment sustaining the attachment, the action on the forthcoming bond could not be maintained. Thereupon plaintiffs entered a motion asking that the trial court himself sign the judgment, or pass the case until the 12th day of the term for the purpose of having the judgment signed by H. C. Faulkner, the presiding judge, when the judgment was rendered. This motion was overruled. The court then sustained the motion for a peremptory, and the jury returned a verdict in favor of the defendant. Judgment was rendered dismissing the plaintiffs' petition as amended, and from that judgment they appeal.

It is well settled that it is essential to the validity of a judgment that it shall be entered upon the order book of the court, and signed by a judge, and that an unsigned judgment is no judgment at all. It is also well settled that an action on a forthcoming bond, executed pursuant to section 214, Civil Code, cannot be maintained in the absence of a judgment sustaining the attachment.

But it is insisted that the allegation in the second paragraph of appellee's answer to the effect that there was a judgment of the court of record in Order Book F, p. 596, which directed that the master commissioner take charge of and subject to the satisfaction of the claims of plaintiffs the property taken under the attachment, constituted an admission of the existence of the judgment sustaining the attachment, and therefore dispensed with the necessity of proof thereof, and estopped appellee from claiming that the judgment was not signed and therefore void. In view of the fact, however, that the first paragraph of appellee's answer denied that the judgment sustaining the attachment had been rendered, and as the judgment sued on does not direct that the master commissioner take charge of the attached property, we cannot say, in the absence of a copy of the judgment referred to by appellee, that it is the same judgment set out in the petition and amended petition of appellants. That being true, appellee was not estopped from claiming that the judgment relied on by appellants was void.

But it is claimed that the trial court erred to the prejudice of appellants by not signing the judgment himself, or postponing the case in order to give the judge who presided when the judgment was rendered an opportunity to sign the orders including the judgment. Inasmuch, however, as the action was brought without a judgment sustaining the attachment, and such a judgment was a condition precedent to the right to maintain the action, the presiding judge could not then, by any act of his, give vitality to the suit which had been prematurely brought; and, the suit being prematurely brought, it was proper that it be dismissed.

Section 977, Kentucky Statutes, provides as follows: "Upon the death of a circuit judge, or when from any cause the office is vacant, or when the judge is absent, his successor no matter how chosen, may sign any orders of court left unsigned by his predecessor, the same as his predecessor might have done." This statute was enacted for the purpose of enabling a judge's successor, no matter how chosen, to sign orders which the presiding judge may for any reason have failed to sign. The statute should be liberally construed to carry out the purpose of the Legislature. There can be no doubt that it applies to a case like this. Whether Judge Faulkner, the presiding judge, failed to sign the orders because he was absent, or merely forgot to do so, his successor in office may now sign the orders, and it is his duty to do so.

In view of the fact that the action was dismissed because it was brought in the absence of a judgment sustaining the attachment, the action was prematurely brought, and the order below dismissing the action will be treated as an order dismissing without prejudice, and will not, therefore, bar another action on the bond, when the orders on the order book shall have been signed by the present judge.

Judgment affirmed.
Ky.App. 1912.
149 S.W. 896, 149 Ky. 455


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