Beuerlein v. Hodges — 10 N.Y.S. 505

Majority

p. 505

Beuerlein v. Hodges.

(Supreme Court, General Term, Fifth Department.

June 20, 1890.)

Headnote

Appeal—From Justice op the Peace—Time of Taking.

Code Civil Proe. N. Y. § 8140, provides that a justice of the peace must keep a docket-book in which he must enter the judgment, and section 3046 provides that an appeal must be taken within 20 days after the entry of judgment in the justice’s docket. Held, that the time for taking an appeal from the judgment of a justice is to be reckoned from the entry of the judgment in his docket-book, and not from the entry in his minutes.

Appeal from Livingston county court.

Action by Fred Beuerlein against Benjamin F. Hodges. From an order dismissing defendant’s appeal from a judgment of the justice’s court, on the ground that it was not taken in time, defendant appeals.

Argued before Dwight, P. J., and Macomber and Corlett, JJ.

J. M. Hastings, for appellant. J. F. O'Connor, for respondent.

We are at a loss to know upon what ground the order appealed from was made. The order itself recites that it appeared from the return of the justice, and by the oral stipulation of the parties in open court, that the justice’s judgment was rendered and entered in his minutes on the

p. 506

28th day of September, but was not entered in the docket-book of the justice until the 28th day of October, and that the notice of appeal therefrom was served on the last-mentioned day. Section 3140 of the Code of Civil Procedure provides that “a justice of the peace must keep a docket-book in which he must enter,” among other things relating to “every action or special proceeding commenced before him,” “(11) the judgment or Anal order, and the time of entering it.” And section 3046 provides that “an appeal must be taken within twenty days after the entry of the judgment in the justice’s docket.” Here seems to be no room for construction. It would be quibbling to attempt to distinguish between “docket” and “docket-book,” and the entry in the minutes of the justice was not an entry in the docket. The minutes of the justice are not recognized by the statute. They are mere memoranda, made by the justice for his own convenience and as an aid to his memory. The docket-book is a record prescribed by the statute for the express purpose, among other things, of receiving the entry of the judgment. It is a public record because, by section 3141, the justice is required to keep it open, during the hours when a sheriff’s office must be kept open, “for search and examination by any person, upon his reasonable request.” One purpose served by this provision is to enable any party against whom a judgment has been rendered, and who may desire to appeal, to ascertain when the judgment was entered, and when, accordingly, his time to appeal will expire. There seems to us no room for doubt that this appeal, taken within 20 days after the entry of the judgment in the docket-book, was taken in time. The order appealed from should be reversed. Order of county court reversed, with $10 costs and disbursements. All concur.