Huie v. Devore — 138 A.D. 677

Majority

p. 677

George Huie, Respondent, v. Mary O. Devore, Otherwise Known as Mary O. Heater, Appellant.

Third Department,

May 20, 1910.

Headnote

Judgment — Justice’s Court — foreign judgment — transcript — evidence must be within pleadings.-

In order that a transcript of a judgment rendered by a Justice’s Court in another State may be competent evidence here, it must be subscribed or authenticated as prescribed in the Code of Civil Procedure or the Federal statutes.

Under the- Federal statute (U. S. E. S. § 905) prescribing by whom judicial records in State courts shall be authenticated, the presiding judge or magistrate alone can certify the record.

A transcript attested by the ordinary certificate of a clerk and the certificate of a judge of the Court of Common Pleas of New Jersey, which states that the. clerk is the clerk of the Circuit Court and Court of Common Pleas, is not competent evidence of a judgment of a Justice’s Court of that State.

The defects are not cured by a certificate of the judge that the attestation “is in due form."

Even though the transcript be properly authenticated it is also necessary to establish the jurisdiction of the justice, both of the person of the defendant and .of the subject-matter of the action.

Where the complaint alleges a justice’s judgment, the action cannot be sustained by proof of a judgment of the Court of Common Pleas.

Appeal by the defendant, Mary O. Devore, from a judgment of the County Court of the county of Sullivan in favor of the plaintiff, entered in the office of the cleric of said county on the 16th day of December, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 20th day of ¡November, 1909, denying the defendant’s motion for a new trial made upon the minutes.

p. 678

Edward . O. Sjoerry, William E. Camochan and Albert S. Wright, for the appellant.

Walter K. Barton and John W. Lyon, for the respondent. .

This action was brought upon an alleged judgment of a Justice’s' Court of the State of New Jersey, and upon a promissory note made by the defendant. To prove the judgment, the plaintiff offered in evidence a transcript from the docket book of the justice. It was objected to on the ground “ that it is not authenticated in the manner prescribed by the Code for the authentication of Transcripts of Judgments in Justices’ Courts in adjoining States, nor in the manner required by law.” The court overruled the objection and admitted the transcript, and this is one of the errors assigned.

I think that the authentication was not such as to warrant its reception as proof of the judgment alleged in the complaint. It was not subscribed by the justice who rendered the judgment as required by section 948 of the Code of Civil Procedure, nor was it authenticated by a certificate of the justice annexed thereto as prescribed in section 949. Neither was it authenticated in the manner required by the act of Congress, which provides for the authentication of judicial records, and proceedings of the State courts. (1 IT. S. Stat. at Large, 122, chap. 11, act of May 26,1790; revised into U. S. E. S. § 905.) This act prescribes the persons by whom the records shall be attested. It requires “ the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with'a certificate of the judge, chief justice, or presiding magistrate [as the case may be], that the said attestation is in due form.”, Tinder this act the presiding judge or magistrate can. alone certify, and the record is not well proved by a certificate of any other judge of the same court;1 although of equal authority and rank within the State. (Morris v. Patching 24 N. Y. 394 .) It must appear by the certificate of the judge that he is a. judge of the particular court in which the judgment was rendered. The transcript in this case was attested by the ordinary certificate of a clerk and the certificate of a judge of the Court of Common Pleas. It is also to be observed that the certificate of the judge does not state-that the clerk who attested the transcript was a clerk of the court in

p. 679

which the judgment was alleged to have been obtained, but that he was a clerk of the Circuit Court and the Court of Common Pleas. These defects were not cured by the certificate of the judge that the attestation “is in due form.” The certificate of a judge as to his authority or as to the authority of any person to make the certificate is of no force if it appears, upon the face of the certificate, that it does not conform to the statute of the State or the act of Congress. Assuming, however, that the transcript was' properly authenticated it was necessary for the defendant to establish that the justice of the peace had acquired jurisdiction both of the' person of the defendant and also of the subject-matter of the action. That would have been necessary if the judgment pleaded had been that of a justice of the peace of this State. (Tuttle v. Robinson, 91 Hun, 187 ; People ex rel. Batchelor v. Bacon, 37 App. Div. 414 .) The plaintiff failed to prove such jurisdictional facts. If it be assumed that he properly established the jurisdiction of the Hew Jersey justice of' the peace over the subject-matter of the action pending before him, nevertheless there is an entire absence of facts establishing jurisdiction of the person of the defendant. The proof offered would be insufficient even if the action were one on a judgment of a justice of the peace of this State. It is no answer to these objections that the plaintiff established by legal evidence a. judgment of the Court of Common Pleas. The action is upon a justice’s judgment. There is no hint in the complaint that such proceedings were had that the judgment became a judgment of the Common Pleas. It is a settled rule that recovery must be had, if at all, according to the allegations of- the complaint. “ If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.” (Southwick v. First Nat. Bank of Memphis, 84 N. Y. 429 .)

I am, therefore, of the opinion that the judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.

All concurred; Cochrane, J., in result; except Kellogg, J.,not voting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

Cases cited

Morris v. Patchin 24 N. Y. 394 N.Y. p. 678