Bellinger v. Ford

14 Barb. 250 | N.Y. Sup. Ct. | 1852

By the Court, Hand, J.

In the view I have taken of this case, perhaps the question on the validity of the execution is not so important. I am inclined, however, to think that it was a nullity. The plaintiff had been dead for years, and it did not appear that there was an executor or administrator; or, if there was, that he had any knowledge of this proceeding. Indeed, I have been unable to discover, either from the papers used on the motion, or in the proceedings or evidence in this cause, that the attorney, or the person making the affidavit, or any of the defendants, had any authority or interest in the matter.

Under our former system, an execution could have been actually issued after the death of the plaintiff, if it were tested before, (Center v. Billinghurst, 1 Cowen 33. Hay v. Fowler, 1 How. Sp. T. R. 127.) But it ivas irregular if tested after his death. (Id. And see Heapy v. Parris, 6 T. R. 367; Bragner v. Langmead, 7 Id. 20; Stymets v. Brooks, 10 Wend. 211; Nichols v. Chapman, 9 Id. 452; 2 Saund. R. 6 n, 1 & 6; 1 Tidd, 1029; 1 Burr. Pr. 282.) My first impressions were, that this was merely voidable, and not void. (Patrick v. Johnson, 3 Lev. 403. Blanchenay v. Bent, 4 Q. B. Rep. 707. Center v. Billinghurst, supra.) Generally, this court will not interfere with matters of practice and discretion of an inferior court. But in this case, non constat but the defendants were merely strangers, intermeddling with the property and concerns of others; and taking the property of the plaintiff and appropriating it to their own use, without right or authority, under a misuse of the forms of law, in the name of a deceased person. There is nothing in the code to warrant the proceeding. Even if a suit or suggestion upon the record was unnecessary, at least the personal representatives should apply for the execution. No one authorized to receive the debt and acknowledge satisfaction, appears in this case.

But the justice had no jurisdiction to try a claim for $200. (Yager v. Hannah, 6 Hill, 631. Rockwell v. Perine, 5 Barb. 574.) He returns t at this was a clerical mistake. But he does not state how muc in truth was demanded; nor who made the mistake, nor why t ’e was not an amendment. He may disregard any error not ffecting the substantial rights of the parties. (Code, §§ 171 76, 366.) It is said no objection was made before the justice, lut that did not give jurisdiction. A confession of judgment more than $250 would be void. The statute gives jurisdictf . x> justices, in certain cases specified, “ and no other.” (Cod 53.) Among these, is an action “for taking, detaining or inj ig personal property, if the damages claimed do not exceed oi .undred dollars.” {Id.) The parties could not confer upon e justice jurisdiction to try a cause where more than $100 r e claimed. If this was a mere clerical mistake, the remedy as easy and obvious, by amendment. But there was no amen lent; and we have to deal with the record as we find it. It is to fie regretted that the error has ■ crept into the case, but the statute and the decisions give us no discretion in the matter.

[Fulton General Term, September 6, 1852.

Willard, Hand, Cady and C. h. Allen, Justices.]

The judgments of the county court and of the justice must fie reversed.