10 Wend. 541 | N.Y. Sup. Ct. | 1833
By the Court,
It is enacted by the legislature, that no judgment shall be deemed valid so as to authorize any proceedings thereon, until the record thereof shall have been
It is clear, from an examination of these several provisions, that the costs on a confession upon bond and warrant of attorney are not limited, except when the sum due, or intended to be secured, is under $500. Not by the 13th section above referred to, because that applies exclusively to cases of suit brought, as is obvious not only from the express terms of the first subdivision of it, but from a view of the whole section ; and I am not referred to, nor can I find any other provision in the statute fixing the amount, and if not so, then the case falls within the 11th section, p. 614, which gives common pleas costs in all cases not otherwise provided for. That is the only provision under which the rule for the costs in this case can be found, and is applicable to all cases in the common
The next question is, had the common pleas authority to amend the records so as to give effect to them by relation back to the time when they were docketed l In the case of Seaman v. Drake, 1 Caines, 8, a motion was made, among other things to set aside a judgment on the ground that the roll had not been signed by the clerk before it was filed ; the judgment was duly docketed, an amendment was allowed nuncpro turn, on the ground that the error arose from the negligence of the officer of the court, which it was said should not be allowed to prejudice the party. In Close v. Gillespy, 3 Johns. R. 536, judgment had been entered on a warrant of attorney, and through mistake the defendant’s attorney had not signed she plea, nor was his name inserted in the roll; the amendment was allowed nuncpro tunc, so as to give preference to it to a junior execution. This case was decided upon the principle of Seaman v. Drake, that the omission proceeded from an officer of the court. In Chichester et al. v. Carde, 3 Cowen, 39, the court allowed a record which had been duly signed to be filed nunc pro tunc, that by accident had not been filed at the time execution was issued, and that as against an execution on a judgment entered subsequently to the first one, it appearing that the plaintiff in the junior judgment had notice of the first judgment before his was obtained. The decision would have been different, I presume, so far as the real estate
The record there was properly signed, which gives to it its validity, as in England execution might issue before record filed; and upon that idea and the peculiar circumstances of the case was that cause decided. In Hart v. Reynolds, 3 Cowen, 42, n., a judgment was entered on warrant of attorney, in favor of the plaintiff, against Elisha Reynolds; the bond and warrant were given by John Reynolds; afterwards a judgment was obtained by Taylor & Doe against John Reynolds, and the question was between the two judgments as to the real estate of John. A motion was made to set aside the first, and a cross motion to amend ; Taylor & Doe had actual knowledge of the first judgment, and supposed it to be regularly entered until after their judgment was perfected. The amendment was allowed as against them, reserving the rights of bona fide purchasers and mortgagees from John Reynolds, between the first docket and the amended judgment. When this decision was made, the statute provided that a judgment not docketed should not affect any lands and tenements as to purchasers or mortgagees, & c. 1 R. L. 501, § 2, 3; and hence the reservation of those rights in the order of amendment entered. Then we had no statute requiring the filing of the record before execution issued, nor was it necessary according to the practice in England. The practice of our courts, however, was to require it to be filed. 20 Johns. R. 309. 3 Cowen, 57. The 2 R. S. 360, §11, provides, that no judgment shall be deemed valid, so as to authorize any proceedings thereon, until the record thereof shall have been signed and filed; and section 12, no judgment shall affect any lands, &c. or have any preference as against other judgment creditors, purchasers or mortgagees, until the record thereof be filed and docketed as herein directed. It will be seen, therefore, that judgment creditors are now put upon the same footing in this respect, as purchasers and mortgagees were, by the law of 1813, 1 R. L. 501.
Mandamus granted to vacate the rule of the common pleas, and to set aside the first judgments, so far as the relators are concerned.