Schenectady & Saratoga Plank Road Co. v. Thatcher

6 How. Pr. 226 | N.Y. Sup. Ct. | 1851

Harris, Justice.

It appears by the affidavit of the defendant’s attorney, that the bill of exceptions has already been attached to the judgment roll. Under the provision contained in the last clause of the 264th section of the Code, it became when attached, a part of the roll.

But the more important question involved in this motion relates to the form of entering judgment. The clerk, as appears from the affidavit read in opposition to the motion, has supposed that in a case like this, where the decision of the judge is made in writing and filed, such decision is a sufficient judgment to answer the requirements of the statute. Judging from the rolls returned upon appeals, and which have come within my own notice, I am inclined to think this no uncommon error. The 279th section of the Code requires the clerk to keep a book for the entry of judgments. The succeeding section prescribes the entry which shall be made in the judgment book. It must “ specify clearly the relief granted, or other determination of the action.” Excellent forms for these entries have been prepared by Mr. Monell, and may be found in his book of practice, p. 479., et seq. Until judgment is thus entered, the clerk is not authorized to make up the judgment roll. The statute requires him “ immediately after entering the judgment,” to proceed to make up the roll, and among the papers necessary to constitute a complete judgment roll, is “ a copy of the judgment,” that is a copy of the entry of the judgment made by the clerk in the judgment book. Such entry in the judgment book and copy in the roll is the only record evidence that judgment has been perfected. The judgment roll in this case is defective in this respect. It contains the decision in writing required by the 267th section of the Code, but not the judgment to be entered thereon as required by the same section.

The clerk also erred in attaching to the .roll the bill of costs, the notice of adjustment, and the affidavit of disbursements and attendance of witnesses. These, properly, constitute no part of the roll, and it subjects the parties to unnecessary expense, and is a great inconvenience to the court having occasion to review the proceedings, to have the record encumbered by such useless matter. In the entry of judgment to be made by the clerk, he is required by the 311th section of the Code, to insert “ the sum of the charges for costs, &c.” The amount only is to be inserted, and not the papers necessarily used in ascertaining such amount.

There must be an order directing the clerk of Schenectady, in case he has not already done so, to make an entry of the judgment in this action in the judgment book kept by him, and to attach a copy of such entry to the judgment roll, which should be signed by him. The papers used upon the adjustment of costs must be detached, as constituting no part of the roll. Neither party is to have costs against the other upon this motion.