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Freeport Motor Casualty Co. v. Tharp





APPEAL from the Appellate Court for the Fourth District; — heard in that court on appeal from the Circuit Court of Clay County; the Hon. FRANKLIN R. DOVE, Judge, presiding.


Rehearing denied September 18, 1950.

The sole question presented by this appeal is the timeliness of an appeal taken to the Appellate Court from a declaratory judgment rendered by the circuit court of Clay County in favor of the plaintiff. The trial court held for the plaintiff and defendants appealed to the Appellate Court, Fourth District, which court overruled a motion to dismiss, decided the case on the merits in favor of defendants and reversed and remanded the same with directions. We granted leave to appeal.

The case before the trial court involved the construction of an insurance policy and a declaratory judgment thereon was sought and awarded.

A written judgment order, dated June 15, 1948, was sent to the clerk by the trial judge, accompanied by a letter, which read as follows: "Herewith a declaratory judgment order which you may file in the above entitled cause and the next day there is court in Louisville the appropriate docket entries can be made." Louisville is the county seat of Clay County, where the proceedings were pending. This order and letter were purportedly received by the clerk on June 16, 1948, and both were placed in the files of the case, but no docket entry was made on that date. On June 24, 1948, the next court day, the following entry was made by another judge of the circuit, viz: "Now on the 24th day of June, 1948. Declaratory Judgment Order signed and approved by Judge F.R. Dove. This is filed. Hon. Ward P. Holt, Judge presiding." It is also recited in the record before us that this notation together with the declaratory judgment order "were had and entered of record in said cause" on June 24, 1948, being the same day the above docket entry was noted.

The defendants filed notice of appeal in the trial court on September 22, 1948, within 90 days from the "entry" on June 24 and more than the statutory time allowed from the date of the "order" on the 15th or the placing of the same in the files by the clerk on June 16. The plaintiff filed a motion in the Appellate Court to dismiss the appeal on the ground the same is contrary to the provisions of section 76 of the Civil Practice Act. (Ill. Rev. Stat. 1947, chap. 110, par. 200.) The Appellate Court overruled the motion to dismiss, and reversed and remanded, with directions. (Freeport Motor Casualty Co. v. Tharp, 338 Ill. App. 593.) The merits of the case are not before us here and the sole question is the propriety of the action of the Appellate Court in overruling the motion to dismiss there presented.

The sole question, then, is the timeliness of the appeal. Section 76 of the Civil Practice Act provides in part that "No appeal shall be taken to the Supreme or Appellate Court after the expiration of ninety days from the entry of the order, decree, judgment or other determination complained of." This requirement is jurisdictional and mandatory and the statute must be strictly complied with. Johnson v. County of Cook, 368 Ill. 160; People ex rel. Waite v. Bristow, 391 Ill. 101.

The statute pertaining to clerks of courts provides "They shall enter of record all judgments, decrees and orders of their respective courts, as soon after the rendition or making thereof as practicable." Ill. Rev. Stat., 1947, chap. 25, par. 14.

In the absence of a specific statute, there is a sharp conflict of authority as to when a judgment is "entered." We do not find that the unusual aspects presented here have been precisely presented to this court for consideration. Under our practice there is a distinction between a judgment at law and a decree in chancery. In chancery the whole matter is completely under the control of the chancellor until the final decree has been filed or recorded. Until that time, he may alter, amend, change, or even disregard all he has said in his minutes; he may reverse his announcement or may order a rehearing, on his own motion, at any time before he has passed the decree and it has been filed for record, or it has been spread upon the record. After this is done, the whole matter is beyond his control. Then, and not until then, it is the decree of the court and is res judicata. (Hughs v. Washington, 65 Ill. 245.) In a proper sense there is no filing of a decree any more than there would be a filing of the judgment, and the draft made for the guidance of the clerk is not the decree of the court. Horn v. Horn, 234 Ill. 268.

It is equally clear that a judgment exists in this State from the time the court acts even though it may not have been formally written on the record by the clerk. (People ex rel. Holbrook v. Petit, 266 Ill. 628; People v. Bristow, 391 Ill. 101.) And there is a well-recognized distinction between rendering a judgment and entering a judgment. The former is the judicial act of the court in pronouncing its ruling or finding in the controversy; the latter is the ministerial act of the clerk in preserving the record of that decision. The terms are used antithetically, each in its distinctive correct legal sense. Blatchford v. Newberry, 100 Ill. 484.

This is a suit for a declaratory judgment, which was unknown to the common law and is a relatively new innovation in the law. It is neither legal nor equitable but is sui generis. (Great Northern Life Insurance Co. v. Vince, 118 Fed.2d 232; certiorari denied 314 U.S. 637, 86 L.ed. 511.) Its purpose is to declare the rights of the parties but is not compelling in itself. (Progressive Party v. Flynn, 401 Ill. 573.) It is purely statutory in origin and nature and is to be liberally construed. (Saline Branch Drainage Dist. v. Urbana-Champaign Sanitary Dist. 399 Ill. 189.) Yet the provisions of the statute must be strictly complied with and the prescribed rules of procedure followed. (1 C.J.S. "Actions," sec. 18, p. 1046.) Our statute provides for the entry of a declaratory judgment, decree or order. (Ill. Rev. Stat. 1947, chap. 110, par. 181.1.) We think it takes the character of the nature of the relief declared, in this case a suit at law involving the rights of the parties and the liability under the terms of a policy of insurance, and the judgment rendered thereon is in the nature of, and is governed by the rules affecting the rendition and entry of, judgments at law.

A judgment at law becomes effective as soon as it is pronounced by the court. In the nature of things, a judgment must be rendered before it can be entered. It dates from the time it was pronounced and not from the time it was entered upon the record by the clerk. (People ex rel. McDonough v. Jarecki, 352 Ill. 207.) The judgment rendered is the judgment entered and the rendition thereof is essential to the validity of an entry.

When, then, was this judgment rendered? Although it is clear that the minutes, memoranda, or docket entries made, even by the judge upon his own docket, do not form a part of the official records of the court, yet they do afford a proper means of amending the record and assisting the clerk in accurately making up the record. (McCormick v. Wheeler, Mellick & Co. 36 Ill. 114.) But this is not a case, similar to a number cited, where the record was sought to be impeached by parole. Our question is strictly one of law and it is the legal effect to be given the facts established, about which there is no controversy.

We are aware that in some jurisdictions a judgment is rendered and, therefore, entered at the earliest time at which written evidence of the order, decree, judgment or other written document is embodied in the records of the court. However, we incline to the opinion that the better view is, and it has often been so held, that a judgment is rendered when the judge acts, as a duly constituted court, in declaring his decision of law and pronouncing judgment thereon in open court. (49 C.J.S. "Judgments," sec. 113; 4 C.J.S. "Appeal and Error," sec. 445.) Regularly, a judgment should not be made or rendered by the judge at chambers; it is not valid unless passed in open court. (33 C.J., p. 1070, sec. 26.) A judgment at law becomes effective as soon as it is pronounced by the court. (People v. Jarecki, 352 Ill. 207.) A judgment is rendered on the date on which the trial judge declares ...

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