The entry of the judgment--that is, the recording of it in the judgment-book--is the mere ministerial act of the clerk, and the doing or the not doing it can in nowise affect the validity of the judgment; nor can the death of any of the parties to an action affect its validity, if the death take place after judgment is rendered. (See Sec. 681, Code of Civil Procedure.)
The rendition of a judgment is a judicial act; its entry upon the record is merely ministerial. In the cases cited from 14th and 21st Barbour, the application for execution was made by an attorney who assumed to act on behalf of a dead plaintiff; but here, the application was made on behalf of a live successor in interest.
The writ was properly issued under Sec. 686 of the Code of Civil Procedure, which provides that the writ may issue on behalf of the successor in interest to the judgment creditor. But if it had been necessary forthe entry of judgment to be made in the decedent's lifetime, still this can avail the appellant nothing. In such case, the invariable rule is to refuse to quash the writ, and to permit the record to be amended by making the entry nunc pro tunc, and to amend the writ to correspond with such entry. (Freeman on Judgments, Secs. 56, 57, 61, 64, 67; Mackay v. Rhinelander, 1 Johns. Cases, 411, note at foot of case; Close v. Gillespey, 3 Johns. Rep. 526; Chichester v. Cande, 3 Cowen, 39.)
OPINION By the Court:
There was no necessity for an amendment of the judgment. It was rendered October 2, 1869, in the lifetime of the plaintiff, and recorded October 1, 1874, after his death. Nor was there any necessity to amend the writ of execution, for though it erroneously recited that the judgment had been rendered on the first day of October, 1874, still it otherwise correctly referred to the judgment in such a manner as to identify it. In these respects the order below was erroneous; but, we think that under the circumstances appearing, the motion to restore the defendants to possession was correctly denied. The writ, though issued after the death of the judgment plaintiff, and in his name, was, in point of fact, issued and executed at the instance and for the benefit of Van Nest, who is conceded to be the successor of the judgment plaintiff. Had he, as such successor in interest, applied regularly for the writ in the first instance, the court would have awarded it to him. What has been done is therefore correct in substance, though irregular in point of mere procedure. It is hardly worth while to turn Van Nest out, when it is clear that he must be immediately put back again into possession.
The order as entered below is reversed, and the cause remanded, with directions to enter an order denying the motion, but awarding the moving parties their costs in the court below, and upon this appeal.