Stein v. Meyers ( 1911 )

Mr. Justice Cooke

delivered the opinion of the court:

Defendants in error brought an action of forcible detainer in the municipal court of Chicago against plaintiff in error to recover possession of certain premises in the city of Chicago. Plaintiff in error failing to appear was defaulted, and the clerk, on February 28, 1910, entered upon the records of the court in said cause the following words, letters and characters: “Fndg deft G withh prem descr in complt; judg on fndg & c.” Thereafter, on June 13, 1910, defendants in error, in accordance with notice duly served upon plaintiff in error, applied to the court for leave to amend the record of the cause, and the court thereupon, over the objection of plaintiff in error and without hearing any evidence, entered an order in which it is recited that on February 28, 1910, an order was entered in this cause in abbreviated form, in the words, letters and characters above quoted, and that said entry was in accordance with the order of the chief justice of the municipal court prescribing said entry as an appropriate and sufficient abbreviated form for the finding and judgment hereinafter quoted; that said finding and judgment order were not entered otherwise by the clerk than in said prescribed abbreviated form, and that said finding and judgment entered is the abbreviated form of the finding and judgment as pronounced and rendered by the court February 28, 1910; that said abbreviated form of finding and judgment was entered by the clerk upon the order of the court, and that the court at the same time, after hearing the evidence in the cause, made an entry of said order upon his own minutes, as follows: “February 28th, 1910, D. J. P.,” which minutes represent the judgment as entered by the clerk, but that for greater security it is now deemed advisable to amend said finding and judgment order that the same may be spread upon the record fully, in accordance with the amplified form of such finding and judgment. After setting forth the above recitals the order continues as follows:

“Wherefore, the court being fully advised in the premises and having examined the order as entered by the said clerk of this court and his own minutes as made by the court at the time the said judgment was entered, on motion of the plaintiffs, it is therefore ordered by the court that said finding and judgment order of February 28, 1910, be and the same are hereby amended nunc pro tunc as of February 28, 1910, so that the same shall read as follows, to-wit:/‘And the court having heard the evidence and being fully advised in the premises finds the defendant guilty of unlawfully withholding from the plaintiffs the possession of the premises described in the plaintiffs’ complaint herein, and that the right to the possession of said premises is in the plaintiffs. And the plaintiffs now here move the court for final judgment herein. It is therefore considered by the court that the plaintiffs have judgment herein, and that the plaintiffs have and recover of and from the defendant possession of the premises described in the complaint herein, and that a writ of restitution issue therefor. It is further considered by the court that the plaintiffs have and recover of and from defendant the costs and charges by the plaintiffs herein expended, and that execution issue therefor.^ It is further ordered by the court that said finding and judgment order be entered and spread of record upon the records of this court as of February 28, 1910.”

A writ of restitution was thereafter issued, and was on July 13, 1910, returned by the bailiff of the court as executed. Plaintiff in error has brought the cause to this court by writ of error, and for grounds of reversal urges that section 62 of the Municipal Court act, which authorizes the chief justice to prescribe abbreviated forms of orders, is unconstitutional; that the entry of the judgment order by the clerk in manner -above quoted is in conflict with section 18 of the schedule of the constitution and void, and that the court erred in granting the motion to amend the record for the entry of a judgment nunc pro tunc. Defendants in error contend that the abbreviations entered as a judgment order constitute a valid judgment, and that if they do not, the nunc pro tunc order of June 13, 1910, was properly entered.

Plaintiff in error relies chiefly upon his contention that section 62 of the Municipal Court act is void as being in conflict with section 18 of the schedule of the constitution. That part of section 62 involved is as follows: “That it shall be the duty of the chief justice of the municipal court to superintend the keeping of the records of the said court and to prescribe abbreviated forms of entries of orders therein, which abbreviated forms so prescribed shall have the same force and effect as if the said orders were entered in full in the records of said court.” Section 18 of the schedule of the constitution is as follows: “All laws of the State of Illinois, and all official writings, and the executive, legislative and judicial proceedings, shall be conducted, preserved and published in no other than the English language.” It is plain that section 62 does not conflict with section 18 of the schedule of the constitution, as it does not authorize the chief justice of the municipal court to prescribe the forms of orders in any other than the English language. This section authorizes only the use oí abbreviated forms. It does not authorize the use of any other than the English language or the use of forms containing abbreviations of words which render them unintelligible. There can be no objection to the use of abbreviated forms, and such forms may be as short as desired so long as they aptly express the orders of the court. There is nothing in section 62 that is in anywise in conflict with this section of the constitution.

A motion was interposed by defendants in error to dismiss this writ of error for want of jurisdiction, upon the ground that no constitutional question is involved. A determination of this motion was reserved until the hearing of the cause. This motion must be denied. Section 118 of. the Practice act provides: “Appeals from and writs of error to * * * city courts * * * in all * * * cases in which a franchise or freehold or the validity of a statute or a construction of the constitution is involved, * * * shall be taken directly to the Supreme Court.” Here a construction of section 18 of the schedule of the constitution is involved. As we said in County of Cook v. Industrial School for Girls, 125 Ill. 540, on page 567: “The question of the construction of a constitutional provision usually arises out of a comparison of such provision with the terms of a statute supposed to be in conflict with it. But there are constitutional provisions which are self-executing and require no legislation to make them effectual. * * * It is clear that a question of the construction of such a self-executing clause will generally arise when it is applied to a given state of facts. If the meaning of the prohibition contained in such a clause is perfectly plain there is nothing to construe, but if there is a doubt as to the meaning of any word or phrase when applied to the proven facts then a case for construction has arisen.” Said section 18 of the schedule is self-executing, and provides that all judicial proceedings shall be conducted and preserved in no other than the English language.

At first blush it would appear that there should be no occasion for a discussion as to the meaning of the words “English language.” They refer to the well known spoken and written tongue used by the people of this nation. Webster’s New International Dictionary defines language to be: “The body of words and methods of combining words used and understood by a considerable community.” The English language is composed of words spoken or written. While these words are composed of single letters of the alphabet, the letters themselves do not constitute the English language. In fact, those letters are derived from a language more ancient than the English, and it is only by using them in connection with the spelling of English words that they can be said to be of themselves, in any sense, a part of the English language. To constitute English language the written letters used must be formed into words that are known as a part of the language, and those words so used in such connection with one another that they form sentences which convey some thought or meaning. There are, no doubt, some abbreviations of words which have become so well known and are so commonly used that they could be said to constitute a part of the English language. But such an entry as “Endg deft G withh prem descr in complt; judg on fndg & c.” cannot be said to have been made in the English language. It is simply a jumble of words and letters and conveys no meaning whatever to an English-speaking person. The entry of this so-called order or judgment is in conflict with section 18 of the schedule of the constitution and is therefore of no effect.

We come now to a consideration of the question whether the court properly entered the nunc pro tunc order of June 13. A court has no right to enter a judgment nunc pro tunc at a subsequent term unless the judgment was, in fact, rendered at a previous term and was not entered of record through some fault, neglect or oversight. In such case, the fact that the court did give judgment at the previous term can only be proved by some memorial paper or minute in the case made at such former term. The judgments and records of courts cannot rest in parol or upon so uncertain a foundation as a personal recollection of the judge or any other person, and the fact that a judgment is rendered at a former term cannot be determined from the memory of witnesses or the personal recollection of the judge himself. Where there is no minute or memorial paper in the records of the court to show that judgment was, in fact, pronounced, it cannot be so entered. (Coughran v. Gutcheus, 18 Ill. 390; Ayer v. City of Chicago, 149 id. 262; Chicago, Milwaukee and St. Paul Railway Co. v. Walsh, 150 id. 607; Tynan v. Weinhard, 153 id. 598; Chicago, Burlington and Quincy Railroad Co. v. Wingler, 165 id. 634.) The order for the entry at the subsequent term recited that the entry by the clerk, as above quoted, was in accordance with the order of the chief justice of the municipal court prescribing that entry as an appropriate and sufficient abbreviated form for the judgment which the court had directed to be entered. No evidence was heard by the court and no proof made to support the order. We have no means of knowing what was contained in the order of the chief justice referred to. That the characters entered by the clerk were in accordance with an order of the chief justice of the municipal court, and by virtue of such order represented the nunc pro tunc judgment entered, is merefy the conclusion of the trial judge. If such an order by the chief justice existed, it should have been introduced in evidence and incorporated in the bill of exceptions in this case. It may be possible that the entry of the clerk at the time of the default could be shown to be such a memorial paper as to warrant the entry of such a judgment as is contained in the nunc pro tunc order of June 13, but from the facts appearing in this record it does not warrant the entry of such nunc pro tunc judgment. Nor can it be said that the situation is aided in the least by the recital in the order that the entry of the judgment nunc pro tunc was based also upon the minutes of the trial judge, which were as follows : “February 28th, 1910, D. J. P.” While the letters “D. J. P.” may have a well known meaning to the trial judge, or may, in fact, be designated in the order of the chief justice of the municipal court referred to as possessing a particular meaning when used in this manner, there is nothing in this record which discloses that they had any particular meaning or that it was the minute customarily made by the trial judge in such cases. So far as it appears from this record, the court was without power or authority to enter the judgment nunc pro tunc as of February 28, 1910.

The order of the municipal court of June 13, 1910, amending the record, is reversed and the cause is remanded to that court, with leave to defendants in error to renew . their motion for the entry of a proper judgment.

Reversed and remanded.