Thompson v. Jenks — 2 Abb. Pr. 229

Majority

p. 229

THOMPSON against JENKS.

Supreme Court, Sixth District; General Term,

November, 1866.

Headnote

Stipulation.—Revival of Judgment.—Execution.

After the lapse of twenty years from the docketing of a judgment, it is not competent for the parties to revive it hy an order entered upon a stipulation by consent. Judgment cannot be revived or renewed except in the manner prescribed by the statute.

Where the defendant, in a judgment recovered in a justice’s court, gave a stipulation that execution might be issued thereon, Held, that an execution issued by an attorney was not valid; and if it had been, it was competent for the defendant, before sale to object to the enforcement of the execution.

p. 230

Motion for a new trial on exceptions.

This action was brought by Chauncey L. Thompson against Elmer D. Jenks to recover the value óf some cattle the defendant caused to be levied upon and sold by virtue of an execution in his favor against the plaintiff.

The defendant obtained a judgment against the plaintiff before a justice of the .peace for $202 34 damages, and sixty-two cents costs, on the 10th day of April, 1841. A transcript of the judgment was filed in the office of the clerk of Madison county on the 12th day of June, 1841, and the judgment was docketed in his office on that day.

At the time the plaintiff .confessed the judgment before the justice, the defendant gave him a stipulation to the effect that, no execution should be issued on the judgment until after the death of the plaintiff’s father.

The father of the plaintiff died on the 30th of July, 1856.

On the 30th day of September, 1862, the plaintiff gave a stipulation to the defendant, which recited the judgment and the date it was rendered, and the date it was docketed in the office of the county clerk, and the fact that the above-mentioned stipulation was made when the judgment was confessed, and the death of the plaintiff’s father. ' The stipulation contained a consent by the plaintiff “ for value received, that the clerk of Madison county, or any other person authorized to issue execution on the judgment,” might issue an execution on the same, without any notice to the plaintiff, or any motion therefor. The stipulation also contained a, consent by the plaintiff, for value received, that an order might be entered on filing the stipulation, to the effect above mentioned. And the stipulation stated'that the plaintiff thereby renewed and revived the judgment, in full force and virtue, for the amount and interest on the same.

The stipulation was filed, and an order was entered in the! office of the clerk of Madison county on the 15th day of October, 1862, that the said judgment be revived and renewed, and that the clerk of Madison county, or any other person authorized to issue execution, be, by virtue of said stipulation," authorized to issue execution on said judgment, the same in all respects as if said judgment had been revived and renewed by the court ón a regular motion on notice, and an order entered for that purpose.

p. 231

H, C. Miner, Esq. (an attorney of this court), issued an execution on said judgment, as attorney of the defendant, by virtue ■of which a deputy of the sheriff of Madison county levied upon and sold the cattle in question.

The plaintiff forbade the sale of the cattle, and also forbade the defendant taking the same away after he had purchased them.

The action was tried at the Madison circuit, in February, I860. The judge ruled and decided that the judgment was barred by the statute of limitations, and that said judgment, execution and sale passed no title to the defendant of the cattle—• and that the stipulation and order did not revive it; that the execution was void, not being issued by the county clerk but by the attorney, and that an execution "could only issue by order of the court; and the judge directed the jury to render a verdict in,favor of the plaintiff for the value of the property. The defendant’s counsel excepted to the above rulings and decisions of the judge. The jury found a verdict for the plaintiff for $154.49 damages.

Judgment was suspended, and the defendant moves for a new trial on his exceptions.

Pratt, Mitchell & Brown, for plaintiff.

H. C. Miner, for defendant.

There is some authority for saying that the plaintiff could make a new promise in writing, that would enable the defendant to maintain an action against him on the judgment, which the defendant attempted to enforce by execution ; and I am not prepared to hold that the plaintiff’s stipulation was insufficient to authorize the defendant to bring an action on the judgment, or to avoid the defence of the statute of limitations to such an action. (See Carshore v. Huyck, 6 Barb., 583 ; 4 Kern., 21). But I am of the opinion that the judgment could not be legally revived by an order entered in the office of the county clerk upon the plaintiff’s stipulation. The judgment had lost all force before the plaintiff signed the stipulation for its renewal or revival. More than twenty years

p. 232

had elapsed after it was docketed in the county clerk’s office before the stipulation was given; and it was of no value to the defendant, unless it was a sufficient consideration for a new promise by the plaintiff to pay it (See Waltemire v. Westover, 14 N. Y. [4 Kern.] 16; Code of Pro., §§ 63, 64, sub. 13, § 90; 16 How. Pr., 475 ; 32 Barb).

Judgments cannot be revived or renewed except in the manner prescribed by statute; and the judgment in question was not revived or renewed pursuant to any statute, but by stipulation, in a way not authorized by any statutory provision.

It cannot be said that the plaintiff consented to the seizure and sale of the cattle in question because he agreed that the judgment should be revived and renewed, and that an execution might be, issued thereon. In the first place, the execution was issued by an attorney, when an execution on a judgment of a justice of the peace, which has been docketed in the office of the county clerk, can only be issued by the clerk; (Code, § 64, sub. 13; Brush v. Lee, 18 Abb. Pr., 398 ), and the plaintiff did not consent that the execution might be issued by an attorney, •but only by the clerk or any other person “ authorized to issue execution on the judgment.” This consent did not justify the attorney in issuing the •execution, for the reason that an attorney is not a person “ authorized to issue execution” on such a judgment. In the second place, the plaintiff forbade the sale of the cattle upon the execution, and objected to the defendant taking them away after he purchased them. Hence, if the stipulation was an agreement by the plaintiff that the defendant might do all he did do upon the judgment and execution, the same was not executed before the plaintiff refused to perform it, and ob- . jected to its enforcement. .

If the foregoing conclusions are correct, the judgment and execution were no defence to the action, and the defendant’s ' motion for a new trial should be denied, with costs.

Ordered accordingly.

Footnotes

* Present, Parker, Mason and Balcom, JJ.