Bond v. Citizens National Bank

Alvey, C. J., delivered the opinion of the Court. The appeal in this case is taken from an order of the Court below overruling a motion to strike out a judgment rendered in an attachment proceeding. The case was tried before the Court, without the assistance of a jury, on the 20th of June, 1885, and was held sub curia until the 25th of the same month, when verdict was rendered for the plaintiff, assessing damages, and judgment was forthwith entered thereon, and judgment of condemnation of the property seized under the attachment. In the course of the trial the defendants offered several propositions for acceptance by the Court, to govern in the determination of the case, but which propositions the Court refused to accept; and it seems to have been the purpose of the defendants to appeal from the ruling of the Court.

No exception, however, was prepared and tendered to the Court during the term, and none has ever been signed by the Court. The defendants insist that the right of appeal from the judgment as entered was lost by reason of surprise to them, occasioned by the entry of the judgment in the permanent judgment record, instead of the original or trial docket of the term. It is not pretended that the judgment was procured by fraud, or by any irregularity in the proceedings, such as contemplated by the Code, Art. 15, sec. 38, but the illegality or irregularity is supposed to consist in the failure to enter the judgment in the original trial docket, before entry thereof in the judgment record,— a record book kept for the permanent registration of all judgments and decrees. After the lapse of the term, that is, on the 22d of Sept., 1885, the defendants moved to strike out the judgment, 1st, because it had been irregularly entered; 2d, because it operated a surprise to the defendants; and, 3rdly, because it was- illegally entered.

Afterwards, the defendants assigned additional reasons for ⁵⁰⁰ striking out the judgment, “ for the sole purpose of permitting them to have their appeal.” And in support of • this last motion, affidavits of counsel were filed, as to their want of knowledge of the fact that the judgment’ had been entered. The Judge below caused it to be entered of record that the motion to strike out the judgment was-heard, not only upon the affidavits filed, but also upon oral testimony, and which oral testimony is not set out in the record. And such being the case as presented by the record, two questions arise : 1st. Whether the. judgment was legally entered; and, 2ndly, if legally entered, whether there was any such surprise in the entry thereof as to require it to be set aside in order to secure to the defendants the right of appeal. 1.

As to the first of these questions, there would seem to be no substantial ground whatever for declaring the judgment to have been illegally entered. Section 16 of Article 18 of the Code-directs, that the clerks shall, immediately after the expiration of each term of the Court, enter and transcribe into well-bound books, the docket entries of each civil suit or action, legal and equitable, which shall have been ended during the term, by trial, judgment, decree,