Niles v. Perry — 29 How. Pr. 192

Majority

p. 192

SUPREME COURT.

Samuel S. Niles, Executor, &c. agt. Benjamin Perry.

Headnote

An action will not lie in the supreme court to obtain leave to issue an execution upon a judgment in the county court.

Syracuse Special Term, April, 1864.

Demurrer to complaint. This action was instituted to obtain leave to issue an execution upon a judgment which was rendered before a justice of the peace, and docketed in the county court, so as to make it a judgment of the latter court.

B. Lee, for plaintiff.

Geo. Gray, for defendant.

I have come to the conclusion that this action cannot be sustained, for the reason that the relief sought must be afforded by the county court, where the judgment is. The writ of scire facias as a form of proceeding, is probably abolished in all cases, but where it was a proper remedy it could only issue from' the court in which the judgment was rendered (Graham’s Pr. 661). Whether the executor could obtain execution by motion or by action in that court, it is not necessary to decide, but I am satisfied that he must apply to the county court when he seeks to obtain the remedy formerly reached by scire facias. This court has no jurisdiction to grant such relief upon a judgment in the county court.

This is not an action on the judgment, which I think could be entertained in this court, but an action to obtain leave to issue execution upon the original judgment, so as to preserve the lien of the judgment upon the judgment debtor’s land. That remedy must, I think, be obtained in the same court in which the judgment was rendered.

Judgment. accordingly.