Wemple v. Johnson — 13 Wend. 515

Majority

p. 515

Wemple vs. Johnson.

NEW YORK,

May, 1835.

Headnote

The suing out of a certiorari, to remove a justice’s judgment, may be pleaded in answer to a declaration in debt upon such judgment, although the certiorari is not sued out until after the commencement of the suit on the judgment.

Asa general rule, such defence should be pleaded in abatement; but where, in a suit in a justice's courts the defendant added notice of such defence to the plea of the general issue, instead of pleading it in abatement, and the plaintiff, at the joining of the issue, did not object to the form of the pleadings; it was heldy that he could not subsequently object in the common pleas to which the cause was removed by appeal, that the defence was available only by plea in abatement.

Error from the Montgomery common pleas. On the 20th May, 1833, Wemple commenced a suit in a justice’s court against Johnson, and on the 29th May declared in debt on a justice’s judgment, rendered in his favor against the defendant on the 10th May, 1833, for $25 damages, and $2,63 costs. The defendant pleaded the general issue, and gave notice that, on the trial of the cause, he would prove that on the 22d May, 1833,a certiorari was allowed by the first judge of Montgomery common pleas, removing the judgment whereon the action was brought into the common pleas; and that such certiorari was served on the justice rendering the judgment, on the 29th May, previous to tire joining of the issue on that, day; The justice rendered judgment for the plaintiff. The defendant appealed. On the trial in the common pleas, after proof of the judgment, the defendant produced the certiorari referred to in his notice, allowed on the 22d May, 1833, and also produced the bond required to be given

p. 516

on the allowance of a certiorari, bearing date and approved on the day of the allowance of the. certiorari; and proved that the affidavit upon which the certiorari was allowed, the certiorari, and the bond, were served upon the justice who rendered the judgment declared upon, a few hours previous to the joining of the issue in the action upon the judgment. The plaintiff objected to this evidence as inadmissible, because the certiorari was not allowed until after the commencement of the suit upon the judgment; because the notice was not sufficient to authorize such proof, inasmuch as it was not therein stated that the certiorari was brought before the commencement of the suit, or that the necessary steps had been taken to render it a stay of execution; and because the matters relied upon by the defendant, if available, could be plead only in abatement, and not in bar of the action. The objections however were overruled, and the evidence received ; and the jury, under the charge of the court, found a verdict for the defendant, on which judgment was rendered. The plaintiff sued out a writ of error.

D. P. Corey, for plaintiff in error.

J. Morrell, for defendant in error.

By the Court,

A writ of error pending may be pleaded in abatement to an action of debt on a judgment, if it be stated that it was brought prior to the commencement of the suit on the judgment, and that the requisite steps have been taken to render it a supersedeas to an execution, 2 Johns. Cas. 312 ; or the court will stay the proceedings on a proper application, 1 Archb. Pr. 242. The action of debt on judgment is usually unnecessary and vexatious, and is and should be discouraged by the courts. 1 Ld. Raym. 47.

The service of a certiorari and of the affidavit upon which it is allowed, and of the bond required by the statute, upon the justice rendering the judgment, stays the execution, if not already issued ; and, if issued, the certificate of the justice suspends the execution of it in the hands of the constable, 2 R. S. 256, § 176. The first clause of this section is

p. 517

merely declaratory of the common law effect of the writ, 1 Bacon’s Abr. 570, G., as, after the cer¿¿o?-ar¿, nothing remainedbefore the justice authorizing the execution. It seems to be set-tied that a plea in abatement must aver that the writ of error was brought before the commencement of the action on the judgment. Tj¡je strict application of this rule would always defeat the plea m a-ease like this, as the suit may be commenced as soon as judgment is rendered. To give effect, therefore, to the above provisions óf the statute in reference to the certiorari, and inasmuch as the summary remedy of staying execution is inapplicable to justices’ courts, we feel ourselves bound to say, that the issuing of a certiorari, in pursuance of the provisions of the act, constitutes a good defence to the action. The short period within which the certiorari must be sued out, and the security required to be given for debt and costs, guard the rights of the defendant in error, and remove. every pretence for a new suit on the judgment.

The general rule undoubtedly is, that a defence of this nature must be pleaded in abatement; but considering the great informality of pleadings in justices’ courts, and the uniform indulgence extended to them, we feel ourselves warranted in holding the notice accompanying the general issue in this case sufficient. The pleadings before justices may be either verbal or written, 2 R. S. 234, § 48. By allowing them to be verbal it is obvious that the legislature intended to dispense with all form, except what was necessary to advise the opposite party of the nature of the matters relied on. It was not contemplated that the justice should attend to the technicality of special pleading: indeed the statute only requires him to notice the substance of the pleadings, when put in verbally. It may be added that special pleadings injustices’ courts are discountenanced, as is strikingly illustrated in the case of Kline v. Husted 3 Caines, 275. Besides, the plaintiff in this case should have objected to the form of the pleadings at the time of the joining of the issue.

Judgment affirmed.

Cases cited

Jenkins v. Pepoon 2 Johns. Cas. 312 N.Y. Sup. Ct. p. 516