Graham v. Scripture

26 How. Pr. 501 | N.Y. Sup. Ct. | 1864

By the court, Bockes, Justice.

The action is on a judgment rendered by the court of common pleas in 1844. The complaint alleges the recovery of the judgment, and that the same, has not been paid ; and further, that the county court of St. Lawrence county granted leave to the plaintiff to sue the judgment. The defendant demurred to the complaint, assigning as cause of demurrer that it did not state facts sufficient to constitute a cause of action.

The point of demurrer is, that the county court had no authority to grant the order giving permission to the plaintiff to bring the action on the judgment, and that such, order is void.

The first question presented is, whether, in an action on judgment, it is necessary to aver that leave to prosecute the action had been obtained.

Section 71 of the Code of Procedure declares that no action shall' be brought upon a judgment rendered in any court of this state, except a court of a justice of the peace, between the same parties, without leave of the court for good cause shown on notice, &c. This section was introduced to prevent a practice sometimes resorted to, conducive to no good end, and generally vexatious and oppressive. It takes away no right of value to the creditor, while it protects the debtor from unnecessary, harassing and burdensome proceedings. Under this provision, leave to prosecute is a condition precedent to the right of action on the judgment. Hence, according to rules of pleading, such permission should be averred, or the complaint fails to show a cause of action. A cause of action is synonymous with right of action—a right of recovery, and a complaint which does not show a right of recovery, fails to show a cause of action. The complaint should state facts sufficient, if admitted or proved, to authorize a recovery of judgment. But the holding of a judgment against a party merely, does not, since section 71 of the Code was adopted, give a right of .recovery on it. As a condition precedent to a right of recovery thereon by a party to a judgment, leave to prosecute must be obtained of the court. Without an allegation that such permission has been obtained, the complaint fails to show a cause of action.

The next question is, from what court must the leave to prosecute be obtained ? If the judgment be in the supreme court, no doubt can exist. Leave must of course be obtained of that court. That court alone has control of the judgment, and no motion could be made in the action in any other. So it seems to me the plain import of section 71 is, that leave to prosecute should be obtained from the court in which the judgment was rendered. The language of the section is: “ No action shall be brought upon a judgment rendered in any court of this state, without leave of the court for good cause shown, on notice to the adverse party.”

The court here mentioned is evidently the one last alluded to, which is the court in which the judgment was rendered.

There is obvious propriety in this construction, inasmuch as every court should control its own practice according to law, even to the manner of enforcing its judgment.

A fair construction of the language of section 71, would, in some cases extend its operation, so as to permit a motion for leave to prosecute to be made to the court which has control of the judgment and excecution ; and in such case leave would be well obtained from the court having control of the execution, although the judgment was originally rendered in. another court.

In Lyon agt. Manly, (18 How. 267,) the judgment was recovered before a justice of the peace', and docketed in the county court. It was held that an action could not lie on it. without leave of the county court to bring the suit.

On filing the transcript and docketing the judgment, it became the judgment of the county court. (Code, sec. 63.) So it was adjudged in the case cited', that leave to prosecute should be obtained from the court having control of the judgment.

In the case at bar the judgment was recovered, in the late court of common pleas of the county of St. Lawrence.

If this is to be deemed a judgment of the’ county court, or if the county court has control of the judgment as regards its enforcement, then the case' of Lyon agt. Manly is in point.

On examining and collecting the several enactments relating to county courts and their jurisdiction and powers, it seems very evident that it was intended that the powers of the county court should be exercised whenever necessary’ to aid in the enforcement of judgments rendered in the late court of common pleas. In effect, judgments of the court of common pleas became the judgments of the county court; executions on such judgments issued from the county courts. (Section 55, judiciary act 1847. See also sections 30 and 56 of the same act; also Code, section 30, particularly sub. 11.) A motion for liberty to issue execution on such judgments when necessary, or to set aside an execution improperly issued thereon, or for a perpetual stay of execution, would properly be made in the county court. So it would seem to follow that the order for leave to prosecute a judgment rendered in the late court of common pleas should be obtained from the county court.

It is not necessary to decide that in all cases the order must be obtained from the court having control of the judgment on which suit is desired to be instituted.

Perhaps there may be cases when it would be appropriate and necessary to the attainment of justice, to obtain leave to prosecute from the court in which the action on the judgment is brought.

We mean here to decide only that in this case we deem the order granted by the county court giving leave to prosecute the judgment, well obtained. And we also deem the averment sufficient in substance. If at all defective, it is by reason of not being sufficiently specific. This defect, if indeed there be any, should be corrected by motion.

The order and judgment appealed from should be affirmed with costs.