p. 34Cogswell vs. Cole & Lain.Headnote
A justice’s execution against a party, an inhabitant having a family, issued before the expiration of the time limited by statute, is good, if applied' .for at the time of the rendition of the judgment, although judgment was not rendered until four days after the trial, and the' execution was obtained without previous notice of an intention to apply for the same.Demurrer to replication. This was .an action of trespass de bonis asportatis. The defendant Cole pleaded non cul. and specially, that on the twenty-seventh day of June he obtained á judgment before Lain, the other defendant, who was a justice of the peace, of the town of Potter, in the county of Yates, in a suit commenced by him against the plaintiff, and on the same day, and at 'the time of rendering the judgment, on his application and oath, an execution was issued upon the judgment, by viriue.of which the property in question was taken. ■ The plaintiff replied that the cause was tried on the twenty-third day of June, and submitted to the justice for determination, who took four days to render judgment; that both parties then left the office of the justice, without any application being made for an execution ; that the justice rendered judgment on the twenty-seventh day of June, and that at the time of the rendition of the < judgment, the plaintiff was a resident of and had a family within the county of Yates, and that he had not notice of the intention of .Cole to apply, nor of the application for an execution. To this replication the defendant Cole demurred. The pleadings on the part of Lain were substantially the. same.
H. Welles, for the defendants,
insisted that the execution duly issued, if, as alleged in the pleas, the application for the same was made at the time of rendering the judgment; and that the new matter of want of notice set up in the replication, was no. answer to'the pleas.
J. A. Spencer, for the plaintiff,
contended that the pleas conceded that without a special application for the issuing
p. 35of the execution, the process, issued as it was"before the expiration of the time limited by the statute, would have been'illegal. That application, he insisted, according to a just construction of the statute, must be made either whilst both parties are present before the justice, or on notice, so that the party liable to execution may give the security mentioned in the act. Such was the construction given to a similar provision of this same act, by Chief Justice Savage, in Taylor v. Fuller, 3 Wendell., 406; and such must be deemed, to have been the intention of the legislature. Here the replication substantially avers that the, application was not made, whilst the parties were present, or on notice. The replication, therefore; was a good answer.
By the Court,
The execution issued immediately on the rendition of the. judgment, although Cogs-well was an inhabitant of the county of Yates, and had a family. 2 R. S. 249, § 134. This was irregular, and both Cole and the justice are trespassers, unless the execution was applied for in the manner prescribed by the 135th section : “ Application for such execution may be made either before or at the time of rendering the judgment; or, if reasonable notice be given to the: adverse party, of the intention to apply for such execution," such application may be made at. any time after the judgment shall have been rendered.” The defendants, in their pleas, have brought themselves plainly within the language of the statute; they aver that the application was made at the time of rendering the judgment. To this the plaintiff replies, that the justice took four days to render judgment, (§ 124) upon which both parties left the office, and the plaintiff had no notice of the intention to apply, nor of the application for an execution. This is no answer to the pleas, for the reason that when the application is made either before or at the time of rendering the judgment, no notice to the adverse party is required by the statute.
During the four days which the justice may take for consideration, the parties are only deemed in court for the purpose of receiving judgment,. 10 Wendell, 52L The plain
p. 36tiff was not actually present when the judgment was rendered, and consequently had no opportunity of answering the application for an execution, ,by giving security. (§ 136.) Had the law-makers foreseen that such a case would arise, they would probably have provided for it; but we' cannot supply a
casus omissus in the statute, without assuming powers that have been confided to another department of the government. 1 T. R. 52, per Buller, J. The replica: tians are insufficient.
Judgment for defendants.