Bowman v. Tallman — 25 N.Y. Super. Ct. 632

Majority

p. 632

George Bowman, plaintiff and appellant, vs. William M. Tallman, defendant and respondent.

Headnote

1. An execution issued by the plaintiff upon an original judgment at special term in his favor, after an oral announcement by the judges of the same court, at a general term, of an affirmance of such judgment on an appeal, and the entry by the clerk of such affirmance in the minutes of such general term, is a mere irregularity and only to be taken advantage of on motion.

2. The right to move to set aside such execution on the original judgment for irregularity may be waived by delay in moving. And the lapse of five months is such delay, when no excuse is given therefor.

(Before Robertson, Ch. J., and Monell and McCunn, JJ.)

Heard January, .1864;

decided February, 1864.

This was an appeal from an order made by Justice Barbour at special term, setting aside an execution upon a judgment as irregular, illegal and and void.

On the 22d of February, 1864, judgment was entered in favor of the plaintiff against the defendant. On the same day an appeal was taken by the defendant from the judgment to the general term of this court, and an undertaking to stay proceedings upon the judgment was filed.

The appeal'was argued in the general term, and on the 28 th

p. 633

of May, 1864, the general term orally announced its decision, affirming the judgment. The entry in 'the minutes made by clerk was as follows. After the names of the judges composing the court and the title of the cause : “ J udgment affirmed with costs.” * *

On the 30th of May, 1864, the plaintiff issued an execution on the judgment of February 22, 1864. An order affirming the judgment was duly entered-on the 31st of May, 1864. On the 8 th of June, 1864, the defendant appealed to the Court of Appeals, giving the proper undertaking to stay proceedings.

On the 5th of October, 1864, the defendant gave the plaintiff notice of a motion that the execution be vacated and set aside “ as irregular, illegal and void,” on the ground that at the time of its issuing the judgment had not been affirmed.

The motion was granted at special term, nnd the plaintiff appealed.

George Bowman, plaintiff and appellant, in person,

E. T. Gerry, for the defendant, respondent.

By the Court,

I am inclined to think that when the execution issued, the stay upon the judgment was not removed. The effect of giving the undertaking on the appeal to the general term, was to stay all further proceedings upon the judgment appealed from, (Code, § 33,) andan execution could not regularly issue until after the judgment of the general term affirming the j udgment appealed from. The mere oral announcement of a decision by judges sitting in the general term, and the entry of such decision in the minutes of the clerk, is not such a judgment of the general term as will authorize action under it. A formal judgment which embraces the decision and becomes a permanent record of the court, must be entered by the clerk, and such judgment only removes the stay of proceedings. (Lenthilon v. Mayor, &c., 1 Code R. N. S. 111.)

There was, however, a valid judgment to support the execu

p. 634

tion. Its effect and operation and the rights of the plaintiff to enforce it by appropriate process, was suspended pending the appeal. It was undoubtedly, therefore, an irregularly in conducting the proceedings to enforce it, to issue an execution before judgment of affirmance had been duly entered. But it was an irregularity merely. Mr. Tidd (in his Practice, 512,) says : “An irregularity in practice may be defined to be the want of adherence to some prescribed rule or proceeding. And it consists in omitting to do something that is necessary for the due and orderly conducting of a suit or ordering it in an unseasonable time, or improper manner." He mentions the entering of judgment before the time to plead has expired ; the service of an execution after its return day, and the like,- as instances of irregularities.

The long and uniform practice of the court has required that motions to vacate process, or proceedings irregularly issued or taken in a cause, shall be made at the first opportunity after the irregularity has been discovered, otherwise the irregularity will be deemed to be waived.

The execution in this case was issued on the 30th of May, 1864, and as the defendant’s attorney states in his affidavit, was on the same day levied on the defendant’s property. Yet the defendant omitted to take any steps to procure the execution t"o be set aside until the 5th of October, more than four' months after it was issued. I think he was too late, and should be deemed to have waived the irregularity, especially as the judgment of affirmance was entered in due form on the 2d of June, and the defendant appealed .therefrom on the 8t'h of June, With knowledge of the irregular issuing of the execution.

The order appealed from should be reversed.

Ordered accordingly.