30 A.D. 173 | N.Y. App. Div. | 1898
The papers upon which the judgment by confession was entered are defective in substance' and form. Subdivisions 2 and 3 of section 3011 of the Code provide: •
*176 “ 2. The confession must be in writing,, signed by the defendant and filed with the justice.
“ 3, If the judgment is confessed for a sum exceeding fifty dollars the confession must be accompanied with the affidavit of the defendant and of the plaintiff, stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein, over and above all just demands which the defendant has against the plaintiff, and that the confession is not made or taken with intent to defraud any creditor.”
There is no formal confession of judgment by the defendant. The paper signed by him, and probably intended as his affidavit, has neither venue nor jurat, and fails to state that he is justly indebted to the plaintiffs in the sum specified therein over and above dll just demands, etc. The paper executed by the plaintiff lacks the same formalities as an affidavit and omits the final substantial requirements of subdivision 3.
We think the defects, in substance, are fatal to the validity of the judgment as one by confession. There was no action pending between the parties; they appeared of their own motion before the justice and undertook to make such compliance with the statute as would confer jurisdiction upon him to enter the judgment, and they failed to do so. Hence he had no jurisdiction. The judgment cannot be sustained- as a judgment entered upon the voluntary appearance of the parties and joinder of issue, under .sections 2876, 2934, since there was no joinder of issue or summons issued, nor under sections 2988, 2989, since judgment by default can be taken only after summons has been served, or, if not served, after issue joined. Besides, treated otherwise than as a judgment by confession, the amount of the recovery exceeds $200, and is, therefore, in excess of the jurisdiction of the justice. (§§ 2861, 2862.) The appellant contends that the County Court had no jurisdiction to set aside the execution. We think otherwise. Section 30Í7 provides for the filing of a transcript of a justice’s judgment in the county clerk’s office, and says: “ Thenceforth the judgment is deemed a judgment of the: County Court of that county and must be enforced accordingly.”
Staying the execution relates to the enforcement of the judgment, and jurisdiction to enforce implies jurisdiction to stay the
The Supreme Court has jurisdiction to set aside an execution upon: á judgment upon the motion of a junior execution creditor of the same debtor. (Chappel v. Chappel, 12 N. Y. 215; Harrison v. Gibbons, 71 id. 58 ; Wood v. Mitchell, 117 id. 439.)
The County Court was not bound by the transcript, and had the right to look into the proceedings in the Justice’s Court to see whether that court proceeded within its jurisdiction. (Agar v. Tibbets, 56 Hun, 272.) Jurisdiction to enter the judgment depended upon the. substantial compliance by the parties with the statutory requirements. They failed to make such compliance, and hence the justice did not acquire jurisdiction to enter the judgment. This is a different question from reviewing errors made by the justice within his jurisdiction.
The order should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.
