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Young v. Rummell

5 Hill & Den. 60 Court N.Y. Sup. Ct. English

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p. 60
Young v. Rummell.

Headnote

Where the declaration in a justice’s court was “ for moneys due on contract, (lost by tire,) damages for non-performance of contract,” &c., and the defendant, instead of calling for a more full statement of the cause of action, pleaded the general issue; held, that the plaintiff might give in evidence a written contract between him and the defendant for the conveyance of lands, and recover the money due thereon.
Though a suit be tried on its merits before a justice and submitted for his decision, yet, if he omit to render judgment therein, the proceeding will form no bar to a second action for the same cause.
The cases of Hess v. Beekman, ( 11 Johns. Rep. 457 ,) and Watson v. Davis, ( 19 Wend. 371 ,) commented on and explained.
Error to the Erie O. P. Rummell sued Young in a justice’s court and declared “ for moneys due on contract, (lost by fire,) damages for non-performance of contract, services rendered, money paid, goods sold and delivered.” The defendant pleaded “ the general issue, non-performance of contract; and gave notice of set-off” The justice rendered judgment in favor of the plaintiff, for $87,63 damages, together with $3,03 costs, and the defendant appealed to the C. P. Judgment was there rendered against the
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defendant, which was afterwards reversed by this court and aye nire de novo ordered. ( 2 Hill, 478 .) On a second trial in the C. P., the plaintiff proved the execution and loss of a written contract between him and the defendant, and offered to give parol evidence of its contents. The defendant objected, on the ground that the contract was not set out or described in the declaration. The court overruled the objection, and the defendant excepted. The contract was then shown to have been for the sale of land by the plaintiff to the defendant, who was to pay a stipulated sum therefor in three annual instalments, the first of which had become due, and amounted, with interest, to $92,17. The plaintiff here rested, and the defendant proved by Timothy S. Hop-tins that, before this suit was commenced, an action was instituted before the witness, a justice of the peace, to recover the instalment in question; that the cause was tried and submitted, but that no judgment was ever rendered. The reason assigned for not giving judgment was, that, on the second or third day after the trial, a man by the name of Gilbert called on the witness and told him he (Gilbert) was authorized to discontinue the suit, the parlies having agreed to arbitrate. No evidence was given, however, showing that Gilbert had authority to direct a discontinuance. The defendant’s counsel insisted that the former trial and submission constituted a bar to the present action, and requested the court below so to charge. But the court refused to charge as requested, and directed a verdict for the plaintiff. The defendant’s counsel excepted. The jury rendered, a verdict in favor of the plaintiff for $92,17; and, after judgment, the defendant sued out a writ of error.
E. Cook, for the plaintiff in error.
J. G. Masten, for the defendant hi error.

We have repeatedly held that pleadings in justices’ courts as brief and imperfect as those in the present case, were sufficient to let in the evidence, unless the party was called on, at the time of joining issue, to state his

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cause of action or defence more at large. The court below were therefore right in overruling the first objection taken at the trial.[1]

I think the doctrine of the case of Watson v. Davis ( 19 Wend. 371 ) is a full authority for the decision of the court below that the former trial and submission, not having been folr lowed by the rendition of a judgment within four days, constituted no bar to the present action. In the case cited, judgment was rendered after the four days had expired, and we held that the action had therefore abated. The fact of such judgment having been rendered was hr np way material, so far as the principle involved in the decision is concerned. That rests and was placed upon the ground that the justice omitted to act till after his functions had ceased. His neglect to render judgment within the four judicial days worked a discontinuance. The subsequent step in the cause was therefore coram non judice, and left the matter open for a rehearing. The case of Hess v. Beekman, ( 11 Johns. Rep. 457 ,) when rightly understood, does not conflict with this view. There, the plaintiff withdrew the action within the four days, and the justice rendered judgment against him for costs. The court, being of opinion that the plaintiff had no power over the suit after it had been submitted, regarded the judgment as having passed against him upon the merits, and as ofogmlrse conclusive upon the subject matter involved. It waMgjJfe singular, and most unreasonable, to hold that the neglecfcjiyg justice to exercise his judgment upon the case at all, or until his power to do so had ceased, should have the effect to conclude the plaintiff and extinguish his demand forever, without any fault or interference on his part. Upon the doctrine contended for, I do not see but, if the justice should die, resign, or in any way become disabled, so that judgment could not be rendered within the four days, the plain

(a) (a) See Cowen's Treat. 551, 569, 2nd ed. and the cases there cited; Fitch v. Miller, ( 13 Wend, 66 ;) Civill v. Wright, (id. 403;) Whitney v. Crim, ( 1 Hill, 61 ;) West v. Stanley, (id. 69;) Chamberlin v. Graves, (2 id. 504, 506, and cases cited in note (b);) Hebbert v. Delaplaine, (3 id. 187;) Dunham v. Simmons, (id. 609.)

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tiff would be concluded, and the demand, however meritorious, gone.

I think the common pleas were right and that their judgment should be affirmed.

Judgment affirmed.[2]

(b) (b) Where a justice omitted to render judgment on a verdict in favor of the de. fendant; held, a bar to a second action for the same cause. (Felter v. Mulliner, 2 Johns. Rep. 181 .) This case seems to have gone upon the ground, that, under such circumstances, the entry of judgment being a thing of course, the verdict alone ought to conclude. And see Young v. Overacker, (id. 191.)

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