13 How. Pr. 398 | N.Y. Sup. Ct. | 1854
By the second subdivision of the 30th section of the Code, exclusive power is conferred on the county court to review, in the first instance, judgments rendered by a justice’s court in civil actions. The 351st section of the Code repeals all statutes then in force, providing for the review of judgments in civil cases rendered by justices’ courts, and declares that, thereafter, the only mode of reviewing such judgments shall be an appeal as prescribed .in that chapter. The appellate jurisdiction of the county court, therefore, embraces all judgments rendered by a justice’s court in civil actions, or, as they are called in the 351st section of the Code, “ civil cases.”
The question now to be decided is, whether the judgments which the relator seeks to have reviewed, are judgments in civil actions or cases, within the meaning of the statute.
Various attempts have been made to define an action. The last, of which I am aware, is that made in framing the Code. Its definition, as now amended, is, that it is an ordinary proceeding in a court of justice, by which one party prosecutes another for the enforcement of a right, &c. It must be conceded, I think, that this definition is not remarkable for its perspicuity or distinctness. I suppose, myself, that any judicial proceeding which, if conducted to a termination, will result in a judgment, is an action. Hence the definition of a judgment, as given in the 245th section of the Code, is, that it is the final determination of the rights of the parties in an action.
There are various modes of commencing an action. In courts of record, since the adoption of the Code, it must be by summons, served upon the party in some one of the modes prescribed, .or by voluntary appearance, which is regarded as equivalent to a personal service. Other modes have been, and
Applying this test to the adjudications in question, there can be no doubt that they are judgments in civil actions. It is true, the proceedings were instituted by the service of what the, statute calls a notice, requiring the defendant to appear, &c. But whether the defendant appear according to the exigency of this notice or not, the court proceeds to dispose of the case, as it does other cases after due service of process. If the defendant does not appear, judgment upon default is rendered against him, as in other cases. If he does appear, issue is to be joined, and then the parties proceed to trial and judgment in all respects as in other cases.
This view of the question is strongly supported by the uniform practice of other courts, in kindred cases arising under similar statutes. The act under which the proceedings in question were had is, substantially, a copy of the New-York lien law of 1851. (Sess. Laws, 1851, p. 953.)
Appeals have frequently been brought from the judgments of the marine court and justices’ courts in New-York, in proceedings instituted under this law, to the New-York common pleas, and have always been entertained. The fact that no objection appears to have been made to the right of the court to review these judgments, should not impair the value of the precedent. (See Sullivan agt. Brewster, 8 How. 207; Cronk agt. Whitaker, 1 E. D. Smith, 647; M‘Bride agt. Crawford, id. 658; Cronkright agt. Thomson, id. 661; Hauptman agt. Halsey, id. 668—and many other cases under same law reported in same volume.)
I am of opinion that the county judge erred in refusing to entertain the appeals for want of jurisdiction, and that he ought to be required to reinstate the appeals, and hear and decide them. The motion is, therefore, granted.