Locke v. Hubbard

Citations

• 9 S.D. 364
• 69 N.W. 588
• 1896 S.D. LEXIS 185

Syllabus

<p>1. Under Comp. Laws, Sec. 5102, providing that a judgment “shall be entered in the judgment book,” a judgment so entered is the original judgment, and a form of judgment signed by the judge is only an order for judgment, and not the judgment of the court.</p> <p>2. Comp. Laws, Sec. 5102, providing that the judgment must be entered in the judgment book, does not, in effect, give authority to the clerk to enter the judgment, as the act of the clerk in so entering the judgment is merely the clerical act of writing the judgment under the direction of ,the court.</p> <p>3. Where oral evidence of the clerk of the court is admitted without objection to contradict the recitals in an execution, it cannot be disregarded on appeal.</p> <p>4. Under Comp. Laws, Section 5110, providing for the issuance of execution within five years after entry of judgment, no execution can issue until after such entry.</p> <p>5. A payment by' a third person to a bank on its delivery to him of a note secured by a mortgage, on which payments have been made, but not indorsed, which fact was known to all the parties thereto, is an assignment by the bank of the note, and continues the lien in behalf of the assignee for the amount paid by him.</p>