People ex rel. Demarest v. Gorman — 38 N.Y. St. Rep. 891

Majority

p. 891

The People ex rel. William E. Demarest, App’lt, v. John J. Gorman, Sheriff, Resp’t.

(Supreme Court, General Term, First Department,

Filed May 15, 1891.)

Headnote

Execution—Irregular judgment.

An irregularity in the form of a judgment rendered by a court of competent jurisdiction does not render invalid an execution issued thereon which contains the recitals required by the Code, and such irregularity cannot be taken advantage of on habeas corpus proceedings.

Appeal from order of special term, dismissing writ of habeas corpus.

G. H. Smith, for app’lt; W. F. Severance, for resp’t.

It is claimed by the appellant that the execution upon which he was arrested is void upon its face.

The only papers presented to the court are the writ of habeas corpus and the return of the sheriff containing the execution under which he claims to hold the defendant

It is urged that the court not having, the power to enter a judgment in the form described in the execution, therefore such exe

p. 892

cution is void on its face and insufficient to hold the relator upon the ground that as no liability attaches against the appellant as guardian ad litem except for costs awarded against the infant plaintiff, and as the judgment is not described as being for costs, the execution is void and insufficient to hold the relator, because if the judgmeút is for costs it is not intelligibly described in the execution, which § 1306 of the Code provides must be done.

This proposition assumes facts which are in no way established before the court The execution contains all the recitals required by the Code; and if there is any irregularity in the judgment it appears from the judgment, and not from the execution, and such judgment is not before the court, and if it were, such irregularity could not be availed of upon these proceedings. If the judgment is in a form unauthorized by the Code, the proper course to be pursued would be by motion to have the judgment corrected.

It is conceded that the party under arrest is liable for the judgment described in the execution, but because the judgment is irregular in form that therefore the execution is void. This is by no means the rule.

The court of common pleas, in which the judgment was entered, had jurisdiction of the subject matter and the parties, and having such jurisdiction, whatever irregularities it may .have committed must be corrected in that court and cannot be availed of in this summary way.

We think, therefore, that the order appealed from was correct, and should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.