Bent v. Glaenzer

| N.Y. App. Term. | Jul 15, 1896

Daly, P. J.

" The plaintiff sued upon a judgment rendered by a .justice of the peace in Xenia township, Greene county, Ohio, and offered as evidence of such judgment the proof and authentication prescribed by the Code of Civil Procedure, sections 948-949, in the case of a judgment rendered by a justice of the peace within an adjoining state. Objection was duly made and overruled-, and the question upon this appeal is as to the competency of such proof. The provision of section 948 of the Code is substantially “ a. transcript from the docket-book of a, justice of the peace within an adjoining state of a judgment rendered by him; a transcript of his minutes of thq proceedings in the court previous to the judgment *" * * when subscribed by the justice and authenticated as prescribed in the next section is presumptive evidence of his jurisdiction and of the matters shown by the' transcript.” ' " .

The next section requires a certificate of the justice to be annexed to the transcript to "the eflec't that it is in all respects correct and that he had jurisdiction of the cause; and a certificate of the clerk or prothonotary of the county in which the justice resided. at the time he rendered the judgment, under his hand and the seal of the Court of ■ Common Pleas, or other County Court of the county, to the effect that the person subscribing the certificate attached to the transcript was, at the date of the judgment, a justice of the peace of that county and that the signature thereto is in his own handwriting. These requirements were complied with by the plaintiff in the present case, but were objected to as inapplicable, on the ground that Ohio is not .an adjoining state to. Hew York.

Judged by the plain reading of the statute and the common use and meaning of the words employed, the objection is well taken. According to Webster, “ adjoin ”■ means “ to lie ■ or to be next in contact: to be contiguous: ”. “ to join or unite .to: to lie contiguous to: to be in contact with: to attach: to append:” and in this sense Ohio no more adjoins Hew York than California or Texas does. Judicial interpretation of such a provision is found 'in the reports of this state. Where the question was as to the authority, under the Revised Statutes, of a justice of one town- to act in the “ next adjoining ” town it was held that the towns of Marathon and Virgil in this .state were next and .adjoining each other because they touched and came in contact. Holmes v. Carley, 31 N. Y. 283. And where the question was as to the jurisdiction of a justice residing in the town of Hoosiclc and the parties to the-action residing in the town of Schaghticoke, it was held that the said towns do not adjoin each other, they being separated by the town of Pittstown. Houghtaling v. Groesbeck, 51 N.Y. 673" court="NY" date_filed="1873-03-05" href="https://app.midpage.ai/document/houghtaling-v--groesbeck-3584776?utm_source=webapp" opinion_id="3584776">51 N. Y. 673. New York and Ohio do not adjoin, being separated by Pennsylvania. The word as used in the statute signifies actual contact, physical and material, according to the ordinary understanding of men. Holmes v. Carley, above.

.The argument to the contrary advanced by respondent is that the intention of the legislature was to extend the Code provision to all the states, and that evidence of this intention is found in the title of the statute (Code Civ. Pro., chap. 9, title 4, art 3), “ Proof of a document remaining in a court, or public office, of the United States dr executed, or remaining without the state and the title of the original' enactment from which the Code provision is taken (Laws of 1836, chap. 439), “ An act in relation to the proof of judgment rendered before justices of the peace in other states.” The title is no part of an act, but the object of the act is often avowed in the title (Dwarris, 265),- and if the titles of these statutes indicated a contrary intention to that .expressed in the body of the acts, the argument would have force'; but the titles do not unequivocally indicate an intention to apply the act to judgments rendered in all the states of the Union. The terms “ other states ” and “ without the state ” are not inconsistent with a restriction to certain other states particularly described. Had it been the intention of the codifiers to apply the Code provisions to the judgments of the justices of all the states nothing would have been easier. The re-enactment of the restrictive language of the former statute is evidence of an intention to do otherwise. It is argued that the provision in question being remedial should be liberally construed “ to prevent a failure of the remedy.” . Dwarris, 231; Endlich, 107. The rule which prescribes that statutes in derogation of the common law must be strictly construed does not apply to the Code (§ 3345), but there is no question here of failure of remedy. At common law actions upon a judgment obtained' in a justice’s court of a sister state may be maintained in the courts of this state upon proof of the statute giving the justice jurisdiction. Thomas v. Robinson, 3 Wend. 267" court="N.Y. Sup. Ct." date_filed="1829-08-15" href="https://app.midpage.ai/document/thomas-v-robinson-5513217?utm_source=webapp" opinion_id="5513217">3 Wend. 267. And the plaintiff can prove his judgment under the common-law rules without the assistance of the Code. His remedy, therefore, is unaffected; it is only a question of convenience.

The judgment must be reversed and a new trial ordered, with costs to abide event.

Mo Adam and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs to abide event.