dissenting:
I concur in the views expressed in this case, except in so far as it relates to the legal effect of the act of the clerk in entering upon the record satisfaction of this judgment. Appellants insist that the entry upon the record in this ease of the words “satisfied by payment, ” etc., was not authorized under the facts of this case, and that such entry is no obstruction to his recovery, unless the clerk had lawful authority to receive the money from the defendant in satisfaction. I find no authority on this precise question. If the entry of satisfaction by the clerk upon the roll or record becomes part of the record to the same extent as does the return of a sheriff upon an execution, then it is plain that, being part of the record, the entry is conclusive until it is set aside by order of the court, made in a direct proceeding for that purpose, (Freeman on Judgments, see. 432,) and the same can not be attacked collaterally by. showing that the clerk did wrong when he made-the record. The clerk himself, if this entry be (properly considered) a part of the record, has no power to set the same aside. (Hughes v. Streeter, 24 Ill. 647.) I think that this entry should be regarded as a part of the record. I think its legal effect is to satisfy the judgment of record. So long as that satisfaction remains in force, no action can be maintained upon the judgment. If this satisfaction of record was entered improvidently, when it ought not to have been entered, it may be set aside by the circuit court on cause shown, on motion.
Counsel for appellants seem to think that this question is affected by sec. 16, chap. 25, Eev. Stat. 1874, relating to the judgment and execution docket to be kept by the clerk, in which docket it is there said: “A blank column shall be kept, in which may be entered a note of the satisfaction or other disposition of the judgment, and when satisfied, by execution or otherwise, * * * the clerk shall enter a minute thereof in such column, shoving how disposed of, the date, and the book and page where the evidence thereof is to be found. ” This provision is merely directory to the clerk, for the convenience of parties, and entries in such book do not, properly speaking, constitute any part of the roll or record. The rights of parties in nowise depend upon the fidelity of the clerk in keeping this docket. Its language assumes that satisfaction spoken of in that section means satisfaction of record, for it requires a reference to the book and page where the record evidence may be found. This distinction between the docket and the record is sanctioned by the reasoning of Judge Mabcy, in the case of Lownds v. Remser, 7 Wend. 37. The views here, expressed are in harmony with the entire reasoning in that case. The clerk has the power, by law, to enter satisfaction of judgments of record in his office, and in this case he did exercise that power, and until that order be set aside by the order of the court, I think no action can be maintained upon a judgment the satisfaction of which stands entered of record.
It ought to. be observed the entry of satisfaction is not made on the judgment docket, but upon the record, which is equivalent to an entry upon the rolls, under the old English practice. It is not denied that “the clerk, on presentation to him of a satisfaction piece, or a proper receipt in full, ” signed by the plaintiff or his attorney of record, “is authorized to enter satisfaction” of the judgment. If this be so, can such entry of record depend for its validity upon the evidence presented to the clerk to induce him to make the entry? If'it should turn out that such receipt in full was a forgery, would that invalidate the entry of satisfaction, or would it in such case require the order of the court to vacate the entry ?