Heermans v. Williams — 11 N.Y. 636

Majority

p. 636

Heermans vs. Williams.

Headnote

Where a party brought an action on the case against another for his non-attendance in a justice’s court as a witness, to prove a judgment rendered by him, and failed in his suit, and then sued out a certiorari to a court of common pleas, who reversed the justice’s judgment and awarded costs against the defendant; and it appearing upon, a writ of error removing the record into this court, that the plaintiff had voluntarily submitted to a nonsuit before the justice, and that the witness appeared at the place of trial a short time after the nonsuit was entered, this court reversed the judgment of the .common pleas, with costs to be paid by the plaintiff below.

p. 638

As a general rule, justices should not be compelled to attend to prove their dockets; the object of the legislature in prescribing other inodes of proof was to relieve them from attending as witnesses for such purposes.

Error from the Yates common pleas. Williams sued Heermans in a justices’ court and declared against him, claiming damages sustained in consequence of the non-attendance of the defendant as a witness in a suit depending before J. Lain, Esq., in which he, Williams, was plaintiff, and one Waterman defendant; averring that Heermans was a material witness for him and was regularly subpoenaed. The defendant pleaded the general issue. On the trial of the cause, J. Lain, Esq. testified that there was a cause depending before him, as a justice of the peace, in which Williams was plaintiff and Waterman defendant; that the action was debt; and that he issued a subpoena for the attendance of Heermans as a witness on the part of the plaintiff, requiring him to attend with his docket at Finch's inn, in Middlesex, on 14th January, at 2 P. M., to which time and place the cause had been adjourned; that at the time and place of adjournment, one J. P. Robinson appeared for the plaintiff, and Waterman did not appear, nor any one in his behalf; that Robinson produced a *transcript of a judgment rendered by Heermans, as a justice of the peace, on the 1st July, 1831, in favor of Williams against Waterman, for $12 22, which was certified by Heermans, but not verified by the certificate of the clerk of the county; that between half past three and four o’clock the plaintiff was nonsuited, and Heermans did not appear until a short time after the plaintiff was nonsuited. It was also proved that Heermans was duly subpoenaed, and the damages of the plaintiff in consequence of his non-attendance before Lain, were shown to be the expense of two subpoenas, the service of the same, and the fees paid the witnesses, (Waterman having paid the previous costs on being admitted to defend,) and fifty cents the charge of Robinson for his attendance as the advocate of Williams. Robinson, the advocate, testified to his attendance, and proved that at the time of the nonsuit, he told the court it was best to call the cause and dispose of it; he further testified, that the parties stayed some time after Heermans came, should think from three fourths to an hour ; and further, that previous to the trial, he, the witness, received a letter from Williams, or he told him he need not wait after three o'clock, for he had understood that Heermans would not attend; this witness said he thought they waited a reasonable time. Heermans proved, by several witnesses, his attendance as & physician on a number of patients, on "the day to which the cause of Williams against Waterman was adjourned, until about the hour of one o’clock, P. M., when he was at the distance of four miles from Finch's inn, and then remarked that he was subpoenaed to attend a law suit. The justice gave judgment for the defendant, with $4 costs. The plaintiff removed the cause by certiorari into the Yates common pleas, where the judgment of the justice was reversed, and $25 costs awarded against the defendant, who sued out a writ of error.

E. Van Burén, for the plaintiff in error.

J. Taylor, for the defendant in error.

By the Court,

We are of opinion this judgment should not be sustained, upon the facts disclosed in the ^return of the justice.

The nonsuit before justice Lain, arose from the inattention of the plaintiff to his rights, and' a culpable omission to avail himself of the privileges which the law gave him, rather than from non-attendance of the witness, who had furnished him with a certified copy of his docket, which, if authenticated by the county clerk, would have proved all the facts essential to a recovery. The certificate of the clerk could have been very readily procured, and ought

p. 639

to have been procured. 2 R. S. 270, § 247. So the judgment might have been proved, in the absence of the justice, by any person who had compared the copy with the original entries, with proof that those entries were in the hand writing of the justice. § 248. As a general rule, parties should be required to resort to this evidence of Justices’ dockets, rather than compel the attendance of those officers to prove them, as one of the objects of providing different and convenient modes of proof was their relief from a burden that must otherwise frequently occur. Again; there was no absolute necessity for the plaintiff to submit to a nonsuit, if he had not elected to do so. As the defendant did not appear, the justice might have kept the court open until the plaintiff had procured, in one of the above modes, or by the attendance of the magistrate, the proof of the docket.

The section of the statute upon which this action is founded, 2 R. S. 242, § 90, is but declaratory of the common law, 1 Phil. Ev. 4, 1 Archb. P. 172, 2 Doug. 566 , 1 Campb. 14, 9 East, 473, which does not subject witnesses to damages for non-attendance, unless when without a reasonable excuse. There are three modes of compelling the attendance of witnesses before a justice : 1. By attachment, 2 R. S. 241, § 83; 2. By fine, not exceeding ten dollars, nor less than sixty-two and a half cents, § 85 ; 3. By an action on the case, to recover the damages sustained for the non-attendance. In the two first modes of compelling attendance, by the terms of the statute, they are not to be enforced, except in the absence of a reasonable excuse. The section giving the action on the case, refers to and is intended to embrace a similar non-attendance, that is, one without just cause.

*The damages claimed are of a trifling amount, and a suit under the facts disclosed in this case, where the proof desired could have been so easily obtained, ought not to be encouraged.

Judgment reversed, with single costs.