107 Misc. 2d 1078 | N.Y. Sup. Ct. | 1981
OPINION of the court
A judgment creditor seeks an order directing our County Clerk to amend and docket a Texas judgment nunc pro tune as of June 16, 1977, the date it was originally filed here, and declaring its priority over subsequent judgment creditors. Special Term vacated the judgment in July, 1978 and, after final appeal in Texas, had again entered it here in March, 1979. The instant motion seeks in effect a nunc pro tune modification of that March, 1979 judgment. It is opposed by a judgment creditor who filed and docketed its judgment in the interim in November, 1978.
The issue to be determined is whether the final appellate reversal of a judgment or order of an intermediate appellate court, which had reversed and vacated an initial judgment of a trial court, reinstates the original trial court judgment as of the date it was initially entered.
It contends, as a matter of law, that the final reversal after appeal of a judgment or order vacating a prior intermediate judgment operates to reinstate the original judgment as of its initial date. It further argues, in any event, that such action be taken within the broad equitable discretion of the court. (Idaho Gold Dredging Corp. v Boise Payette Lbr. Co., 54 Idaho 765; Witteman v Dunkle, 21 Ohio St 2d 3.) There appear to be no New York cases directly in
While New York courts have both inherent and statutory authority to supervise, correct or amend judgments (CPLR 5019, subd [a]), they must also afford full faith and credit to out-of-State judgments. (CPLR art 54; Mansfield State Bank v Cohn, 95 Misc 2d 326.) Rule 502 of the Texas Rules of Civil Procedure states in part “upon the rendition by the Supreme Court of any judgment *** the clerk of said lower court on receipt of the mandate of the Supreme Court *** shall proceed to issue execution therein as in other cases ***. Upon the return of a mandate affirming a money judgment, the execution should recite the fact of the former judgment the appeal therefrom, and the rendition of the judgment of affirmance, upon which the execution should be based.” In Irvin v Ferguson (83 Tex 491), the Supreme Court of Texas, in explaining its remittitur stated “execution shall be upon the judgment of this Court.” Thus a judgment of the highest court of Texas is the instrument which a successful party executes to recover damages. By its own interpretation Texas courts hold it to be a new judgment. The moving judgment creditor Mansfield State Bank did not take steps to preserve the original judgment. The one it now seeks to enforce is the new judgment of the Texas Supreme Court dated November 7, 1978. This was obtained well after the opposing judgment creditor Chicago Title Insurance Co. obtained its judgment in New York. And while the law does not encourage foot races to our County Clerk’s office, the fact remains that Chicago Title Insurance Co. filed first.
Even if this court had the power to issue a nunc pro tune order, it cannot be exercised in this case. “The theory upon which an order may be granted to take effect as of a
Moreover, policy requires that a docketed judgment proclaim that fact to all the world. The vacating of a judgment renders it no longer in existence and any liens evolving therefrom are dissolved. (46 Am Jur 2d, Judgments, § 785.) A bona fide purchaser of real property or any party has a right to rely on the facts that there are no liens or other impediments which could interfere with its actions. For this reason, also, the Mansfield State Bank cannot resurrect the original Texas judgment vacated by this court in July, 1978, nor can such judgment as was subsequently entered be predated.
Accordingly, the motion is denied.
. The judgment debtor died a resident ofNew York State in 1979 leaving real property in Westchester County. Any personal judgments against the deceased debtor are payable by his estate according to priority based upon the date of docketing such judgments. (SCPA, § 1811, subd 2, par [c]; § 1902, subd 3.) As to the entry of judgments after death of a judgment debtor see CPLR 5016 (subd [d]) and Matter of Wakefield, (146 Misc 58).
. Stigwood Organization v Devon Co. (91 Misc 2d 723); Matter of Weppler v Kern (170 Misc 933, affd 257 App Div 940); Matter of Fishell (37 NYS2d 926) are distinguishable on their facts or state what is perceived to be the rule as obiter dicta.