14 How. Pr. 426 | N.Y. Sup. Ct. | 1856
Every judgment-record, or, as it has been denominated in the Code, judgment-roll, should contain the evidence within itself that the court had authority to render judgment, and that a judgment has, in fact, been rendered by the court. If it be a judgment upon default, besides the summons and complaint, the roll must contain evidence that the summons was served, and that no answer had been received, thus showing that the court, had jurisdiction over the defendant, and that he had waived his right to defend. If the defendant has appeared, and an issue has been joined, it must appear from the roll how that issue has been disposed of, so as to authorize
In like manner, if the trial of the issue be had before the court, without a jury, the decision must be in writing; and when the record is made up, the decision becomes a necessary part of it. If there are any other papers which materially affect the judgment, these also should appear in the roll. Thus, it should be made to appear in every judgment-roll that the judgment has been rendered by a court which has jurisdiction of the proceedings, and, when issues have been joined, that those issues have been tried in some manner prescribed by law, so as to authorize the judgment. The specimens of records which are constantly to be seen in courts of review, show how often these requirements are disregarded.
Some misapprehension seems to have resulted from the use of the term “decision” in the 267th section of the Code. I have recently seen a case where my own opinion in an action tried without a jury had been carried bodily into the judgment-record, and made the basis of a judgment w'hich the attorney had conceived himself entitled to, as the result of the views expressed in that opinion. But the decision, which, by the 267lh section of the Code, is required to be “given in writing and filed with the clerk,” is a very different thing from the opinion which the judge may think it proper to write. The opinion may, and often does, serve to enable the attorney to prepare the “decision” for the judge to sign. This is the primary office of the opinion.
But whether there be an opinion or not, there must, in every case of a trial by the court, be a decision. That decision must be made by the judge. This can only appear by his signature or allocatur. In legal effect, the decision of the judge is like the report of a referee. The things are called by different names, but mean precisely the same thing. In the one case,
No one would think, I suppose, that after obtaining a written opinion from a referee which would entitle him to a judgment, he was at liberty to proceed to enter judgment, and make up a record, without the report of the referee : and yet this would be just as regular as to enter a judgment without the written decision, or report of the judge, who tried the case without a jury. (See Sands agt. Church, 2 Seld. 356.)
In this case, it cannot be tol 1, from the judgment-roll, whether or not there has ever been a decision by the judge who tried the cause. The roll contains the pleadings, and these are followed by a document somewhat like a decree in chancery, but which does not purport to have been signed, or allowed by the judge, or, indeed, by anybody else. The record does not show that any decision was ever made. Of course it does not appear from anything to be found in the judgment-roll, that the plaintiff was entitled to the judgment that has been entered, It is true, that the clerk, in entering judgment, has recited the fact that “ the decision, or decree of the judge has been filed;” but on referring to the document which the record contains, it turns out that it does not purport to be the decision or decree of the judge.
The judgment, therefore, must be set aside as irregular. It would be a proper case for allowing the roll to be amended by inserting a decision signed by the judge, but for the fact that the defendant, through the inadvertence or misapprehension of his counsel, has lost his right of appeal.
Under these circumstances, it is but just that the judgment should be set aside altogether, leaving the plaintiff to perfect a new judgment, as he can easily do by procuring a decision signed by the judge who tried the cause, and thus restoring to the defendant his right of appeal.
No costs upon the motion should be allowed to either party.