6 Barb. 308 | N.Y. Sup. Ct. | 1849
I. The question of amendment did not arise under the 145th and 146th sections of the code. There was no variance in the case. There was an omission in the complaint of the entire allegation offered to be proved. It was therefore a case under the 149th section, and the motion
II. The next question is whether the plaintiff was entitled to recover, at all; or, in any event, more than the sheriff’s fees. If the execution was absolutely void, then it was conceded on the trial that he would be entitled to recover the sheriff’s fees ; and the ruling at the circuit was upon the assumption, most favorable to the plaintiff, that the execution was void. We are of the opinion that assuming that the execution was void, the decision at the circuit was right. (1.) In order to arrive at a correct conclusion upon this point, it is necessary to inquire what facts appear from the pleadings. One of the general rules of pleading established by the code of procedure provides that any material allegation in the complaint not specifically controverted in the answer, and any material allegation in the answer not specifically controverted in the reply, shall be taken as true. (Laws of 1848, p. 525, § 144.) Applying this rule to the pleadings in this cause, it will be found that the following allegations of fact are admitted—1st. That the transcript of the judgment in the Albany common pleas was, before the issuing of the ex7
The question then arises, whether money paid in satisfaction of a valid judgment, which stands unreversed, can be recovered back, because the execution by which the goods were seized was irregularly issued, both parties at the time supposing it to be regular. We think it cannot. Blackstone says, (3 Bl.
III. The plaintiff. was rightly nonsuited, for another reason. A statute, which was overlooked by the counsel, both on'the trial and on the argument of the cause, removes the last vestige of the plaintiff’s ground of action. By the 7th section of the act in question, (Laws of 1844, p. 92, § 7,) power is given to the supreme court, and also to the courts of common pleas, to direct the amending and correcting of the dockets of judgments in other-counties, and to direct the docketing of judgments nunc pro tunc with the clerks of other counties ; and it is provided also that they shall possess the same powers over the dockets of their judgments in other counties as when docketed with their own clerks. By virtue of this provision, therefore, the county court has, or the county court of the county of Albany had, full power to order the transcript to be filed and the judgment docketed in the county of Madison nunc pro tunc. The defect was amendable, and therefore the execution stands good until, it be set aside by a court of competent jurisdiction. And whenever a motion to set the same aside shall be made, the amendment will doubtless be allowed and the motion denied. The regularity of the execution can not be questioned in this suit, or in any other collateral proceeding. The execution was a full justification to the sheriff for the seizure of the goods, and would have been so held in an action of trespass brought directly against him. (See 3 Caines,
Motion for new trial denied.