Pearson v. Lovejoy

35 How. Pr. 193 | N.Y. Sup. Ct. | 1866

By the Court, Mason, J.

The first question to be considered in this case is, whether the order of the county court, dismissing the appeal from the judgment of the justice, is to be deemed a judgment, within the meaning of section 245 of the Code. That section defines a judgment to be the final determination of the rights of the parties in the action. It seems to me that, so far as the county court is concerned, it must be regarded as a judgment. The appeal was dismissed on the ground that it was not brought in time. If it appears from the return itself that it was brought in time, and the county court has decided that it was not, and given judgment, dismissing the appeal for that reason, it must be regarded as the final determination of the rights of the parties; for there is no redress left to the appellant, and the action in fact is decided in favor of the plaintiff. The principle enunciated in the following cases would seem to hold that this order, and the judgment entered thereon, must be regarded as a judgment within the spirit and meaning of the 245th section of the Code. (Talbot v. Talbot, 23 N. Y. Rep. 17. 6 Hill, 157. 4 Wend. 483. 4 How. Pr. R. 195. 3 N. Y. Rep. 546. 7 How. Pr. R. 194. 12 John. 31.) It is said in the latter case, whether the decision is denominated a judgment, an order, a decree or sentence, is very immaterial. The decision is in effect a final judgment by which the suit is terminated, and the subject in controversy is awarded to one party, against the other. It would seem from the judgment order dismissing the appeal, that the whole case was brought before the court, and the return itself read, and the cause was moved on, as well upon the notice of argument as upon the notice of motion to dismiss the appeal, and was thus submitted to the court; and when the decision came, it was a dismissal of the-appeal, upon the ground that the appellant was too late in serving his notice of appeal. .

The next and more difficult question in the case is, was the appeal brought in time ? This question depends upon the construction which is to be put upon section 353 of the Code. That section, regulating appeals from judgments injustices’ courts, provides that if the judgment, as in this case, is rendered upon process not personally served, and the defendant did not appear, he shall have twenty days after personal service of the judgment, to serve the notice of appeal, &c. (Code, § 353.) It appears from the return of the justice, that the judgment was entered on the 19th of January, 1852. The notice of appeal was not served until July 17th, 1856; and the only evidence that the appellant had personal notice of the judgment more than twenty days before the notice of appeal was served, is to be found in the affidavit of Joseph E. Brown, and upon which the notice to dismiss was predicated. He swears, in that affidavit, that in March or April, 1854, he heard the defendant, Lovejoy, say that he knew of the judgment in this action, which was entered before Abram I. Brown, Esq. It is claimed on the part of the plaintiff, in this case, that the admission made to Brown proves that he had personal notice of the judgment. Whether he was informed of i.t hy the plaintiff, by the justice, by a stranger, or how he got his information of the existence of the judgment, we are not informed. This, in my judgment, utterly fails to prove that he had personal notice of the judgment, within the meaning and intent of this 353d section of the Code.

Statutes giving the right of appeal are always liberally construed in furtherance of justice, and such an interpretation as will work a forfeiture of such right is not to be favored. (4 Barb. 636. 1 Wend. 395.) The language of the statute is quite plain: “ lie shall have twenty days after personal notice of the judgment.” This does not mean twenty days after he shall ascertain by his own inquiries or investigation, that such judgment exists against him, but twenty days after he shall receive personal notice of the judgment from the party himself in whose favor the judgment was entered. This, I have no doubt, was the intention of the framers of this statute. The legislature never were guilty of the absurdity of limiting the important right of appeal in such cases as this, where there has been no personal service of process upon the party, to twenty days-after he might be informed, by some means or somehow, and perhaps by a stranger, of the existence of the judgment.

The only reasonable construction which can be put upon this statute is to hold that personal notice means a, personal notice , from the party who has obtained the judgment. It was said by the court, in Gilbert v. The Columbia Turnpike Company, (3 John. Cas. 107,) that a notice, in legal proceedings, means a written notice. The same is affirmed by Brown, J., in Miner v. Clark, (15 Wend. 429.) The same is again affirmed in Lane v. Cary, (19 Barb. 539.) The rule is well settled, that where a notice is required or authorized by statute, in any legal proceedings, it means written notice. (See, in addition to the cases above cited, 15 John. 533; 5 Hill, 104; 6 Abb. 56 ; 26 Barb. 248.) This statute must-be .held to give the right of appeal at any time within twenty days after the party shall receive written notice from the party in whose favor the judgment was obtained. Any other construction would leave the time of appealing in the greatest doubt and uncertainty.

[Broome General Term, November 20, 1866.

I am of the opinion, for these reasons, as well as for the reason that the plaintiff had waived his right to have the appeal dismissed, by his general appearance on the appeal, and by noticing the appeal for argument at the May and August terms, that the county court was wrong in dismissing the appeal. They were positive acts of submission to the tribunal whose right to hear the appeal his motion to dismiss questioned. (6 Wend. 550. 2 N. Y. Rep. 467. 7 How. Pr. 111. 27 id. 335. 12 John. 204. 10 Paige, 615, 616.)

•The judgment of the county court should be reversed, and that court directed to hear the appeal.

Parker, Mason, Balcom and Boardman, Justices,]