Appleby v. Barry — 25 N.Y. Super. Ct. 689

Majority

p. 689

Charles E. Appleby, plaintiff and respondent, vs. John Barry, defendant and appellant.

Headnote

In March 1864, the plaintiff’s attorney filed a request in the office of the clerk of this court requiring him to docket a judgment against the defendant. The ' clerk filed it, and gave the plaintiff a transcript, on the same day, which was filed in the county clerk’s office, as required by law; but no actual entry was made in the judgment book, by the clerk of this court, until May following, (1864,) after an execution had been issued upon the judgment. Held that this was a substantial compliance with section 280 of the Code, as between the parties to the judgment; and that the docket in the county clerk’s office was a sufficient foundation for the execution.

(Before Barbour and Garvin, JJ.)

Heard June 18, 1864.

This is an appeal from an order denying a motion to set aside an order for the examination of the defendant, in proceedings supplementary to execution, and to dissolve the temporary injunction.

Wm. C. Clifford, for the appellant.

The defendant contends that there was no judgment against him upon which proceedings could be taken by execution or otherwise; and that until judgment was regularly entered up against him, no valid execution could issue; and that consequently no order to examine him on proceedings supplementary to execution would be regular, and if granted should be set aside.

I. The Code requires the clerk of the court to keep a book, to be called the “ Judgment Book,” in which shall be entered the judgment, and after entering the judgment, the clerk shall file the judgment roll. (Code of Procedure, §§ 279, 280, 281. Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. Pr. 226 . Blydenburgh v. Northrop et. al., 13 id. 289 .)

II. There can be no judgment, unless the same is regularly entered by the clerk in the judgment book required to be kept by law. “ The decision of the court in writing is not the entry of judgment; in such a case, as in all others, the clerk

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must, enter the judgment in the judgment book.” (Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. 226 . Lentilhon v. Mayor of New York, 3 Sandf. S. C. R. 721.)

III. “ There is no suit, no recovery, or adjudication, either actual or formal, of any court or officer, until the judgment is entered by the clerk; and it is the act of this officer that not only creates the lien, but the judgment. * * * * * * Until this clerk enters and records the adjudication thus authorized, there is no judgment at all.” (Opinion of Judge Emott in Blydenburgh v. Northrop and others, 13 How. Pr. R. 289.)

IV. “ A judgment is not perfected under the Code until entered in the judgment book.” “ Then, and not before, the judgment would be complete and perfect, and the clerk could make up the judgment roll, and the judgment could be docketed and collected.” (Sandf. J. in Lentilhon v. The City of New York, 3 Sandf. S. C. R. 721.)

V. A mere direction of an attorney to the clerk to enter up judgment, is not an entry of judgment. In the present case the judgment was not entered up, and therefore no execution could issue. Entry of judgment is a condition precedent to the issuing of execution. See section 283 of the Code, which says, “execution may be issued at any time within five years after the entry of judgment."

VI. If the execution is not valid, no proceedings can be taken on it by the plaintiff, and he has no right to examine the defendant on supplementary proceedings. Therefore, the order of May 10 th, requiring- the defendant Barry to be examined as a judgment debtor, should be set aside.

VII. ’The defendant ought not to be examined as a judgment debtor, on a judgment docketed against him two days after the order of examination was served, and which judgment has not yet been entered in the judgment book of this court.

VIII. Filing the judgment roll is not the entry of judgment. Section 281 of the Code directs that the clerk immediately after the entry of judgment, shall 'file the judgment roll. If judgment be never entered up, the clerk has no right to file the'judgment roll.

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IX. The judgment was not entered in the docket until May 4, 1864, and it has never been entered in the “judgment boob.”

P. W. Turney, for the respondent.

The judgment is in effect docketed in the court in which it is rendered, from the time of the filing the judgment roll. (1 Van Santvoord’s Equity Practice, p. 138.) The roll is the evidence of the judgment, and the roll and indorsement are the original docket.

IL It is not requisite that the judgment should be entered in the alphabetical index in the Superior Court clerk’s office, although it is done in practice. The Code, § 279, only requires it to be entered in the judgment book, which was done in this case. The provisions as to the docket, in the Code, (§ 282,) are clearly applicable only to the docketing in the county clerk’s office. § 289 of the Code requires the execution to state the county where the judgment roll is filed, and the time of docketing in the county; there is no reference to any other docket than that in the county clerk’s office.

III. The statute has been substantially complied with. No party could be misled. A search against. John Barry, in the county clerk’s office, would have produced a return of the judgment. A substantial compliance with the statute is all that is necessary. (Sears v. Burnham, 17 N. Y. Rep. 445 . Hunt v. Grant, 19 Wend. 90 .)

IV. There is no necessity for docketing the judgment in the county clerk’s office, as between the parties ; the docket being intended as a protection and notice to third parties. (3 Cowen, p. 50, note.)

V. The defect (if any) is a mistake of the clerk, and it is a settled principle with the courts, that its suitors shall not be prejudiced by the mistakes of its officers. ( Welles, J. 9 How. Pr. 18 . Sears v. Burnham, 17 N. Y. Rep. 448 . Close v. Gilespey, 3 John. 526 . Sommerindyke v. Drake, 1 C. R. 9. Chichester v. Cande, 3 Cowen, 39.)

In Sears v. Burnham, ( 17 N. Y. Rep. 448 ,) Judge Strong says: “ A substantial observance of the requirements of the stat

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ute, having reference to the object the legislature had in view of affording information to all who might be affected by the judgment, I am satisfied is all that was designed, or is necessary. Those provisions are merely directory; and omissions and variances, "which cannot work any prejudice, are immaterial. ° «• $ The mistakes of the clerk are to be overlooked when no prejudice results. In the present case the error in the docket could not possibly prejudice the appellant, * * the like search which would have beeh required if the dockets had been correct would have disclosed the judgment and the mistake.”

The alleged defect, is one of those specified in § 176 of the Code, and it appearing that such alleged defect does not affect the substantial rights of the appellant, the court must disregard it, and the judgment cannot be affected by reason of such defect. (2 Edwards’ Stat. at Large, p. 442, § 4 and 37, div. 12 and 13. Code, § 176.)

By the Court,

It appears that on the 3d of March, 1864, a request from the plaintiff’s attorney ivas filed in the office of the clerk of this court, requiring him to docket a judgment against the defendant and others for $1785.25, and interest from April 1, 1859, being the deficiency reported by the referee in the action. The clerk filed it,- and gave the plaintiff a transcript, on the same day, and it was filed in the county clerk’s office, as required by law, but it is alleged that no actual entry was made in the judgement book by the clerk of this court, until the 14th day of May, 1864; that an execution was issued upon the judgment, on the 3d day of March, 1864, and returned wholly unsatisfied. On the 10th of May, 1864, an order was made requiring the judgment debtor to make discovery of his property, and forbidding the transfer thereof. It is now contended on the part of the defendant, that there was' no judgment against the defendant at the time of the issuing of the execution, and making the order for his examination. The transcript in question was filed under the law passed in 1840, p. 327, wherein it is provided that no judgment shall be a lien upon real estate,

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unless the same shall be docketed in the clerk’s office of the county where the lands are situate. (§ 25.) Sections 27 and 28, carry out this provision in regard to this court; and section 29 provides that the judgments of the Superior Court, and common pleas, may be docketed in other counties. _ The primary objects of these sections relating to the docketing of judgments and decrees, in the several counties, was to make the clerk’s office of the county the only place where search need be made to ascertain what liens and charges existed upon any lands in that county. It is a good provision, and of great convenience, arid is now so interwoven with all the business habits of the community, that it is generally known, and all judgments are thus docketed in the county clerk's office, and no one thinks of 'going elsewhere to look for liens, or charges by way of judgment or decree. It is true, the Code requires that the judgment shall be entered in the “judgment book,” and shall specify the determination of the action. (§ 280.) This was in effect done by the clerk of this court, when he filed the roll and gave the transcript, which on the same day was docketed in the county clerk’s office, in the “judgment book,” as we must assume, nothing appearing to the contrary; and before this motion was heard at the special term, the judgment had been docketed, in fact. We must hold this to be a substantial compliance with section 280 of the Code, as between the parties to the judgment. The rights of third parties are no way affected ; and it is difficult to see how they could in any way be injured'. All necessary infoririation is afforded to third persons at the. clerk’s office where inquiries are made, and information sought; and the docket in the county clerk’s office is a sufficient foundation for the execution in this case.

It has been held that a substantial compliance with the. requirements of a statute having reference to the object of the legislature in affording information to all who might be affected by the judgment, is all that was designed or is necessary. ( 17 N. Y. Rep. 446 .)

The order of the judge at special term should be affirmed, with costs.

Cases cited

Schenectady & Saratoga Plank Road Co. v. Thatcher 6 How. Pr. 226 N.Y. Sup. Ct. p. 689
Hunt v. Grant & Trowbridge 19 Wend. 90 N.Y. Sup. Ct. p. 691