Hyperlawhypertext legal database Teel v. Yost 56 N.Y. Super. Ct. 456

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Teel v. Yost

56 N.Y. Super. Ct. 456 24 Jones & S. 456 Court N.Y. Super. Ct. Decision date 1889-02-04 English

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p. 456
LEWIS M. TEEL, Respondent v. ABRAHAM YOST, Appellant.

Headnote

Judgment of a court of record of another state, proof of— Essentials of such a record.
The plaintiff to prove his cause of action, offered in evidence an exemplified copy of a portion of the record of the Court of Common Pleas of Northampton county, commonwealth of Pennsylvania. It was there stated that among the records of that court (it is thus contained) “ Continuance Docket, entry of December term 1877, Lewis M. Teel vs. Abraham Yost, D. S. B. $2,268.00. And now, Jan’y 14, 1878, a single bill under the hand and seal of the defendant, dated Jan’y 12, 1878, wherein he promises to pay to the plaintiff, or order, one year after date twenty-two hundred and sixty-eight dollars containing a clause authorizing the entry of judgment, waiving stay of execution, with ten per cent for collection fees, is produced hereto to have judgment entered thereon; wherefore judgment.” With the exception of some assignments, this is the whole transcript of the record.
In this case, it appears that the note upon which the judgment was based became payable January 12, 1879, while the proceeding or record claimed as a judgment, is of the date of January 14, 1878. There was no evidence of any law in Pennsylvania, that would authorize a judgment to be entered upon a note that had a year to run, or that would in any way explain the meaning of this record.
Held, that this record was not evidence of any judgment in favor of the plaintiff and against the defendant for any sum of money, and would not justify a presumption that'any question was adjudicated between the parties. The first requisite of a judgment was wanting. A judgment is defined to be “• a conclusion of law upon facts found or admitted by the parties, or upon a default in the course of a suit; a decision or sentence of the law given by a court of justice or other competent tribunal, as the result of proceedings instituted therein for the redress of an injury.” In this case the absence of process to bring the defendant before the court, and of any order or decree which can be deemed an adjudication, and the absence of any proof of the law or of the practice of the state of Pennsylvania that provided that such a record was in effect an adjudication, the evidence was insufficient to establish that the plaintiff had recovered a judgment against the defendant, and plaintiff having failed to prove the cause of action set forth in his complaint, the complaint should have been dismissed.
p. 457
Before Freedman and Ingraham, JJ.
Decided February 4, 1889.
Appeal from a judgment, entered upon the verdict of a jury by direction of the court.
This action was brought upon a judgment alleged to have been recovered by the plaintiff against the defendant in the Court of Common Pleas of Northampton county, Pennsylvania. The judgment roll offered in evidence by the plaintiff on the trial is printed in full in the case. It was objected to by defendant as without jurisdiction, but the court admitted it in evidence, and directed a verdict for the plaintiff to which direction defendant excepted.
Lemuel Skidmore, attorney and of counsel for appellant, argued:—
The alleged judgment roll offered in evidence lacks many essential characteristics of a judgment. It shows that no process was issued, no pleadings had, no appearance ever made by the defendant or by any one. It simply recites that a bill of which a copy is given was produced, and concludes with the words “wherefore judgment,” not stating for what sum, and no proofs having been taken of the authenticity of the bill produced or the. amount due thereon. Such a proceeding would not constitute a judgment at common law nor according to tfie law of this state, and there was no evidence given to show that it is a valid judgment under the laws of the state of Pennsylvania. Crofts v. Clark, 31 Iowa, 77 . The very idea of a judgment is a judicial decision upon the rights of parties after hearing the evidence on both sides, or giving both sides an opportunity to be heard.
The alleged record here shows that the defendant was not in any way summoned or notified, and there is no waiver by him of such notification.
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It is not within the clause of the constitution of the United States, requiring full faith and credit to be given in each state to the judicial proceedings of another state because it is not in any sense a judicial proceeding. There is no reported case in this state of an action brought upon a record similar to the one offered in this action. In the following cases—Shumway v. Stillman, 6 Wend. 447 ; Huntley v. Baker, 33 Hun, 578 ; Ferguson v. Crawford, 86 N. Y. 609 , and 70 Ib. 253 ; Pringle v. Woolworth, 90 Ib. 502—the records showed that process was issued and served upon the defendant, either personally or in some mode which our court adjudged to be binding upon him.
Samuel B. Rogers, attorney and of counsel for respondent, argued:—
I. The defendant is precluded on this appeal from claiming that the existence of the Pennsylvania judgment was not sufficiently proved. A reference to the case will show that none of the objections or exceptions, upon the trial, were placed upon this ground. The main contention throughout seems to have been either that the judgment was defective for not showing that jurisdiction over defendant’s person was acquired; or, possibly, that it was part of plaintiff’s case to show this by proof aliunde. The cases are numerous that on appeal an exception must be confined to the grounds specified below. Non constat, but plaintiff might have given proof of the laws of Pennsylvania, shovnng the sufficiency of the record, had this point been raised below. Thayer v. Marsh, 75 N. Y. 340 , 342, 343; Jencks v. Smith, 1 Ib. 90, 93; Chace v. Higgins, 1 Sup. (T. & C.) 229, 230; Etheridge v. Ladd, 44 Barb. 69 , 74 ; Binsse v. Wood, 37 N. Y. 526 , 532 ; Webb v. Odell, 49 Ib. 583, 584; Duryee v. Lester, 75 Ib. 442, 444; Union Mfg. Co. v. Byington, 1 Hun, 44 .
II. The record of the Pennsylvania court was sufficient proof of a judgment within the meaning of the
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Federal Constitution and Laws. First.—The rendering of a judgment is a judicial act. The entry is a ministerial one. The judgment exists as such without the latter. That is only necessary for purposes of evidence —to prove its existence. Hence, anything that shows sufficiently its existence is enough. Freeman on Judgments, § 38 : “The rendition of a judgment is a judicial act; its entry upon the record is merely ministerial. A judgment is not what is entered, but what is ordered and considered. The entry may express more or less than was directed by the court, or it may be neglected altogether; yet in neither of these cases is the judgment of the court any less its judgment than though it was accurately entered. In the very nature of things the act must be perfect before its history can be so; and the imperfections or neglect of its history fails to modify or obliterate the act.....In the case of judgments, they must first be entered upon the record before they are admissible as evidence in other courts. For this purpose they are not otherwise perfect. Fish v. Emerson, 44 N. Y. 376 , was a motion to set aside the docket of a judgment which was entered by the justice upon the back of his minutes.as follows: “Fish v. Emerson. Testimony submitted June 30, 1863. Judgment for plaintiff; damages, $124.20, $3.92—$128.12.” Held, a judgment.” Leonard, C.: “ The act of rendering judgment by the justice is judicial; that of entering it in his docket is ministerial.” Gray, C.: “ This omission of duty on his part did not invalidate the judgment.” Churchy. Crossman, 41 Iowa, 373 : “It is settled by the decisions of this court that no particular form of words is necessary to show the rendition of a judgment.” Second.—What are the essentials of the written record or proof of a judgment ? We have seen, supra, that the record of a judgment is none the less good though it be silent as to all the facts constituting jurisdiction. The only requisites left are, that it should state the names of the court, the parties, and the relief granted. All this
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and more exist in the judgment sued on here. The concluding sentence, “ Wherefore, judgment,” obviously is equivalent to some such phrase as “ and it is adjudged accordingly.”
The amount of the note being recited, and the note itself being part of the judgment roll, it is in every way as definite as “judgment for plaintiff $-,” which was held good in Fish v. Emerson, 44 N. Y. supra. “ A judgment is the final determination of the rights of the parties in the action ” is the definition of the former Code (Code Proc., § 245). The present Code has not altered this. It is as follows: “ A judgment is either interlocutory or the final determination of the rights of the parties in the action ” (Code Civil Proc., § 1200). 3 Black. Com. 395 : “Judgments are the sentence of the law, pronounced by the court upon the matter contained in the record.” Freeman on Judgments, § 47 : “ Whatever may have been requisite formerly, it is evident that the sufficiency of the writing claimed to be a judgment must, at least under the Code, be tested by its substance rather than by its form. If it corresponds with the definitions of a judgment as established by the Code; if it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action, and shows in intelligible language the relief granted, its claim to confidence will not be lessened, by a want of technical form, nor by the absence of language commonly deemed especially appropriate- to for j udicial records.” Freeman on Judgments, § 50: “ Whatever appears on its face to be intended as the entry of a judgment will be regarded as sufficiently formal if it show: 1st. The relief granted; and, 2d, that the grant was made by the court in whose records the entry is written.” In Church v. Crossman, 41 Iowa 3 ”73, the action was upon a New York justice’s judgment. The evidence of it was a certified copy of the docket, which, after reciting the title and the date, continued: “ Judgment rendered in favor of plaintiff against defend
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ant in the above cause, on contract, on process personally served.
“Debt.......$200 00
Costs........2 40
Judgment......$202'40”
This was held to be a good judgment, the court remarking : “ It is settled by the decisions of this court that no particular form of words is necessary to show the rendition of a judgment.” Regina v. Yeoveley, 8 Ad. & E. 806, 818, per Lord Dermar, C. J.: “ The book contains a caption and the decision of the sessions, and their decision is the only fact to be proved.” These words were quoted and approved by Curtis, J., in Phila. & U. R. R. Co. v. Howard, 13 How. U. 8. 307, 331. Leathers v. Cooley, 49 Me. 337 , 342: “ The entries upon the docket sufficiently show that judgment had been entered up before this suit was brought.” See also Fish v. Emerson, supra, where an entry in a justice’s court, after the title and date of “judgment for plaintiff, damages, $124.20,” etc., was held to be a judgment. Cromwell v. Bank of Pittsburgh, 2 Wall., Jr., 569 , 581 ff, per Grier, J.: “ It would lead to absurd and mischievous conclusions if we should attempt to test the validity of the records of the courts of Pennsylvania by a comparison-with those of the Kings Bench and Common Pleas in England, or those perhaps of several of our own states. . . . These minutes, whether made by the judges, the clerk, or an attorney, are always brief and informal; usually the word c judgment ’ connected with the date and amount, or judgment for sum due ..... and I have known one prothonotary (a very worthy man, but somewhat eccentric in his orthography) who Avould have made the following minute only : £ Oept. 13 gugt- [this stands for £ Sept. 13 Judgt.’]. Yet, with this paper on file to show the amount and terms of the judgment, and
p. 462
with the help of which a formal judgment might have been drawn up, no lawyer, acquainted with the practice and records of Pennsylvania, would venture the assertion that there was no judgment.” Washington, &c. Steam Packet Co. v. Sickles, 24 How. 333 , 340, per Campbell, J., aThe defendants objected to these docket entries as evidence of a verdict and judgment; but insisted they wrere simply memoranda or minutes, from which a record of a verdict and judgment were to be made. It appears that in the courts of this district, as in Maryland, the docket stands in the place of, or, perhaps, is the record, and receives here all the consideration that is yielded to the formal record in other states. These memorials of their proceedings must be intelligible to the court that preserves them, as their only evidence, and we cannot, therefore, refuse to them faith and credit.”

The complaint alleges that on or about the 12th of January, 1878, the defendant made his certain promissory note in writing at South Bethlehem, in the commonwealth of Pennsylvania, as follow's:

“ $2,268íú°o South Bethlehem, January 12, 1878.

“ One year after date, I promise to pay Lewis M. Teel twenty-two hundred and sixty-eight dollars, without defalcation for value received. And I do hereby authorize any attorney of any court of record in Pennsylvania, or elsewhere, to confess judgment therefor and release of errors; and I hereby also waive all stay of execution from and after the maturity of the above note. Witness my hand and seal, the day and date above written. With ten per cent allowed for collection fees with interest from date. Abraham Tost (Seal).

“ Witness present: Geo. Ziegenfuss.”

The complaint then alleges that thereafter on January 14, 1878, in accordance with the law of Pennsylvania, plaintiff duly entered judgment against the defendant

p. 463
in the Court of Common Pleas of Northampton county, in said commonwealth of Pennsylvania, the same being a court of record and of competent jurisdiction, upon said note according to the tenor thereof, said note being then filed among the records of said court according to the laws of said state. That the plaintiff is the owner of said judgment and of all sums due and owing thereunder and that neither the said judgment nor said note has been paid.

I think it clear that one cause of action is set up in the complaint and that is, a cause of action upon the judgment, and to entitle plaintiff to recover he must prove a valid judgment against the defendant.

In Krower v. Reynolds, 99 N. Y. 248 , the complaint alleged the making of a bond and mortgage which the defendant had covenanted to pay; that subsequently an action was commenced to foreclose the mortgage, to which action the defendant was made a party. A judgment was duly recovered against him upon his covenant for a sum of money named and no part of which was paid, and it was field, that that complaint stated but a single cause of action, and that was a cause of action on the judgment. That upon the facts alleged in the complaint, the covenant was merged in the judgment and that no subsequent action upon the covenant could be maintained.

On the allegation of the complaint in the case at bar, the note was merged in the judgment, and on the complaint as it stood no cause of action could be maintained upon the note.

On the facts alleged, therefore, the only cause of action that existed in favor of the plaintiff against the defendant, was the cause of action on the judgment, and this was apparently the opinion of the trial judge, because when the record from the Court of Common Pleas of Pennsylvania was offered in evidence, an objection was interposed on the ground, that the action was

p. 464
on the note and not on the judgment, and that objection was overruled.

The plaintiff to prove his cause of action offered in evidence an exemplified copy of a portion of the record of the Court of Common Pleas of Northampton Co., commonwealth of Pennsylvania. It is there stated that among the records of that court (it is thus contained), “Continuance Docket, Entry of December term, 1877, Lewis M. Teel vs. Abraham Yost. D. S. B. $2,268^ And now, January 14, 1878, a single bill under the hand and seal of the defendant, dated January 12, 1878, wherein he promises to pay to the plaintiff, or order, one year after date twenty-two hundred and sixty-eight dollars, containing a clause authorizing the entry of judgment, waiving stay of execution, with ten per cent for collection fees, is produced hereto to have judgment entered thereon ; wherefore judgment.” With the exception of some assignments this is the whole transcript of the record.

It will be noticed that the note is payable one year from January 12, 1878, and this proceeding is of the date of January 14, 1878.

There is no record of any process or plea, no record of any service or appearance by the defendant, and at the time of this entry nothing was due on the note. There is no adjudication of the court that defendant should pay anything, or that the plaintiff should recover anything, or that plaintiff should have execution or process of any kind to collect anything. There is no evidence of any law of Pennsylvania that would authorize a judgment to be entered on a note that had yet a year to run, or that would in any way explain the meaning .of this record.

It seems to me that this record was not evidence of any judgment in favor of the plaintiff -and against the defendant for any sum of money, and would not justify a presumption that any question was adjudicated between the parties. The first requisite of a judgment was want

p. 465
ing. A judgment is defined to bé “a conclusion of law upon facts found or admitted by the parties or upon a default in the course of a suit; a decision or sentence of the law given by a court of justice or other competent tribunal as the result of proceedings instituted therein for the redress of an injury.” Bouvier’s Law Dictionary.

In the absence of the process to bring the defendant before the court, and of an order or decree which is an adjudication, and with no proof of the law or practice of Pennsylvania which provided that such a record was in effect an adjudication, the evidence was insufficient to prove that the plaintiff had recovered a judgment against the defendant.

I think, therefore, that plaintiff failed to prove the cause of action set forth in the complaint, and that the complaint should have been dismissed. The judgment should, therefore, be reversed, and a new trial ordered with costs to the appellant to abide the event.

Freedman, J., concurred.

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