Murray v. Jones — 18 N.Y. St. Rep. 916

Majority

p. 916

Margauriet A. Murray, Resp’t, v. Charles Jones, App’lt.

(City Court of New York, General Term,

Filed October 25, 1888.)

Headnote

1. Practice—Judgment or order of court of appeals,, how enforced —Code of Civ. Pro., § 194.

Section 194 of Code Civil Procedure requires that “ the judgment or order of the court of appeals must be remitted to the court below, to be enforced according to law.” It must, therefore, be brought formally to the notice of the court below, and be made one of its judgments. It has no other known means of enforcing the judgment of the court of appeals, and until it makes an order to that effect, and the judgment of the court of appeals becomes incorporated in its own records, no proceedings can be brought to enforce the judgment of the appellate court. Merely filing the remittitur with the clerk, and his adjustment of the costs therein, is not enough.

p. 917

3. Same—Undertaking on appeal to court op appeals—When action

ON MAY BE MAINTAINED

Where, in an action on an undertaking on appeal to the court of appeals from a judgment of the supreme court, the remittitui, as filed with the clerk of the supreme court, together with the order of a judge making the judgment of the court of appeals the judgment of the supreme court, and a transcript as entered thereon by the clerk are produced, held, that these are all the steps necessary to be taken in order to enforce the judgment of the court of appeals, and an action may be maintained against the sureties.

3. Same—Transcript—Reference to judgment.

The objection that the transcript does not in terms refer to the judgment of the court of appeals, is untenable, inasmuch as the remittitur is dated December 6, 1887, and the supreme court judgment was docketed on December 9, 1887, and refers to the parties litigant and their attorneys. In the absence of proof to the contrary, it is a fair presumption that the transcript shows the docket of the supreme court judgment on the remittitur and supreme court order. Although the remittitur has been remanded to the court of appeals, it cannot be said that the appeal in that court is still undetermined. Until the judgment or order of dismissal is vacated by that court, the supreme court judgment entered thereon, is in full force and is binding.

Appeal from judgment of the court, a jury having been waived.

This is an action upon an undertaking given by the defendant on an appeal to the court of appeals from a judgment of the supreme court in favor of this plaintiff, Margaureit A. Murray, who was defendant in the supreme court suit against William F. Parks, who was plaintiff therein. The appeal was dismissed in the court of appeals, the remittitur returned to the supreme court, and an order was made by Mr. Justice Lawrence, making the judgment of the court of appeals the judgment of the supreme court. Judgment was thereupon duly entered and the costs taxed, as appears from the certified transcript thereof, and so found by the trial judge. The remittitur was subsequently, by order of the supreme court, remanded to the court of appeals, but no further action has been taken by the latter court. Defendant moved to dismiss the complaint, on the ground that there was no judgment of the supreme court making the judgment of the court of appeals the judgment of the supreme court, dismissing the appeal in the court of appeals in the action in which Parks was plaintiff and Murray defendant; and on the further ground that the matter now remains pending undetermined in the court of appeals and is now of record there. The motion was denied, whereupon defendant excepted. Hence this appeal.

Alexander Thain, for app’lt; George S. Wilkes, for resp’t.

The record has not been carefully prepared. The orders' of the supreme court should have appeared in full, as they are very material on this appeal. We must,

p. 918

therefore, consider them properly made in every respect and as containing every requitisite which the statute prescribes, otherwise the appellant would have printed them in extenso. This applies specially to the order making the judgment of the court of appeals the judgment of the supreme court.

Section 194 of the Code requires that “ the judgment or order of the court of appeals must be remitted to the court below, to. be enforced according to law.” It must, therefore, be brought formally to the notice of the court below, and be made one of its judgments. It has no other known means of enforcing the judgment of the court of appeals, and until it makes an order to that effect, and the judgment of the court of appeals becomes incorporated in its own records, no proceedings can be brought to enforce the judgment of the appellate court. Merely filing the remittitur with the clerk and his adjustment of the costs therein is not enough. Seacord v. Morgan, 17 How. Pr. 394 . This seems to me to be the correct practice, and has been uniformly followed.

In the case at bar, the remittitur as filed with the clerk of the supreme court, together with the order of Mr. Justice Lawrence, making the judgment of the court of appeals the judgment of the supreme court, and a transcript of the judgment as entered thereon by the clerk (section 1236, Code), are produced. These are all the steps necessary to be taken in order to enforce the judgment of the court of appeals. The objection that the transcript does not in terms refer to the judgment of the court of appeals is untenable, inasmuch as the remittitur is dated December 6, 1887, and the supreme court judgment was docketed on December 9, 1887, and refers to the parties litigant and their attorneys. In the absence of proof to the contrary, it is a fair presumption that the transcript shows the docket of the supreme court judgment on the remittitur and supreme court order.

But it is claimed that the remittitur having been remanded to the court of appeals, the -appeal in that court is still undetermined. This argument is fallacious; for, until the judgment or order of dismissal is vacated by that court, the supreme court judgment entered thereon remains in full force and is binding. Newton v. Harris, 8 Barb., 306 .

The plaintiff has done all she was required to do under the law and the practice, and she is now in a position to enforce the judgment of the court of appeals. Inasmuch as the appellant therein has not paid the costs awarded as taxed, the defendant has become liable therefor on his undertaking.

It follows that the trial court properly disposed of this litigation, and the judgment appealed from must be affirmed, with costs.

Ordered accordingly.

McGown, J., concurs; Pitshke, J., dissents.

Cases cited

Seacord v. Morgan 17 How. Pr. 394 N.Y. Sup. Ct. p. 918