Hunt v. Dutcher

13 How. Pr. 538 | N.Y. Sup. Ct. | 1857

E. Darwin Smith, Justice.

A justice’s court is a court of special and limited jurisdiction.

In pleading the judgment of such a court, it is necessary at common law to show that the court had jurisdiction of the subject matter, and of the person of the defendant. (3 Com. 193; Turner agt. Roby, 7 Hill, 37.)

The complaint in this case does not show that the justice had either jurisdiction of the person or subject matter, except by way of mere allegation, which is clearly insuEcient. It does not show what the cause of action was, that the court may see that it was within the jurisdiction of the justice, and does not show either the service of process upon the defendant, or that he appeared before the justice.

The demurrer is clearly well taken, unless the Code helps the plaintiff out of the diEculty.

Section 161 of the Code is as follows: “ In pleading a judgment, or other determination of a court or oEcer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction; but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts conferring jurisdiction.”

The plaintiff has not used the language of this section. He says, in the complaint, that such proceedings were had before the justice that “judgment was entered in said action.” This is clearly not equivalent to the words that such judgment has been or was “ duly given or made.”

It may not be necessary, and probably is not, to use in the pleading the precise language of the statute, but words to the same effect and substance must be used. (7 Barb. 84.) To say that a judgment is entered, is merely to allege the single fact of the entry of the judgment, without including an averment that it was properly or lawfully done. All this is embraced in the language of the Code, that the judgment was “ duly gwen or made.” The word entered, or perfected, may be equivalent to the word made, or given: but the word duly is most essential. It can hardly be dispensed with and satisfy the terms of the statute. I can imagine no single word that will supply its place. The allegation that the judgment was entered, would be proved by simple evidence of the actual rendition of a judgment. But the allegation that the judgment was “duly given, or made,” could only be proved by establishing, on the trial, the facts conferring jurisdiction upon the justice, and showing that the judgment was, in all respects, lawfully and regularly obtained, or rendered.

The statute gives a short and simple form of pleading a judgment; and it is safest, if not indispensable, that the statute language be adopted and used when the party‘seeks to avail himself of this provision of the Code, instead of following the common-law forms in such cases.

The demurrer is well taken, and judgment fnust be given for the defendant thereon, with leave to the plaintiff to amend, on payment of costs.