6 S.D. 9 | S.D. | 1894
Lead Opinion
On the 10th day of March, 1886, respondent procured a judgment against appellant in a court of a justice of the peace, which, as shown by the certified transcript thereof filed in the circuit court two days thereafter, is as follows:
‘‘Territory of Dakota, County of Hamlin — ss: Justice Court. Before J. R. Taylor, Justice of the Peace. W. H. Williams, Plaintiff, vs. Easton O. Rice, Defendant. Defendant failing to appear, I therefore render judgment in favor of the
“Territory of Dakota, County of Hamlin — ss.: I, R.' J. Taylor, a justice of the peace, hereby certify that I have compared the foregoing with the original entry of judgment rendered by me in the above entitled action and that the same is a correct transcript therefrom as appears from my docket. Given under my hand this tenth day of March, A. D. 1886. R. J. Taylor, Justice of the Peace for Hamlin County, D. T.”
More than five years having elapsed before execution issued, an application on due notice to appellant was made to the circuit court, pursuant to section 5111 of the Compiled Laws, for leave to issue an execution on said judgment, and from an order granting such leave, defendant appeals to this court.
Section 5108 of the Compiled Laws is as follows: “A justice of the peace, on the demand of a party in whose favor he shall have rendered a judgment, must give a certified transcript thereof, which may be filed in the office of the clerk of ihe circuit court of the county or subdivision in which the judgment was rendered, and such clerk must thereupon enter such judgment in the judgment book, and upon the judgment docket; and, from the time of the docketing thereof, it becomes a judgment of such circuit court, and a lien upon real property, and a certified transcript of the docket of such judgment may be filed, and the judgment docketed accordingly, in any other county or subdivision, with the like effect in every respect as if the judgment had been rendered in the circuit court where such judgment is filed.” Counsel for appellant contend that .the transcript filed in the circuit court does not show that the justice of the peace had any jurisdiction to render the judgment, and that an execution can, in no event, issue upon a judgment
The decisive question in Atchison v. Rosalip, 3 Pin. 288, was the sufficiency of the following transcript of a judgment filed in the district court: “Enos S. Baker vs. John Atchison, E. W. Washburne, Garnishee. Damages, $50; costs, $15.96,— $65.96. Transcript from Justice Tompkins. Piled Dec. 27, 1843.” The court says: “Had the proof rested here, there would be no doubt that prima facie a valid judgment was made out. A transcript from the docket of a justice of the peace in this form is substantially sufficient to warrant the clerk of the court in entering,the judgment required by statute. It is not necessary that the transcript should show the jurisdiction of the justice. All this is presumed in the first instance.” In Jackson v. Tuttle, 9 Cow. 233, a transcript of a justice’s judgment filed in the • following form, was held sufficient to bind land, although it does not on its face show that the justice had jurisdiction to render the judgment: “Oneida County, Justice Court. Jesse Hiles vs. Daniel Gridly. March 24, 1820. Judgment rendered for pl’ff for the sum of $49.64; costs, $1.18,— $50.82. Costs of copy to be added. I certify the above to be a true copy of a judgment on record in my office. Dated April
Presumably for the purpose of preserving from loss or destruction a judgment rendered by a justice of the peace, and expressly for the purpose of making it a judgment of the circuit court, a transcript thereof is placed upon the judgment book, and entered upon the docket in said court, and thereby becomes a lien upon real property, and in every respect the same as a judgment rendered in the circuit court. For convenience, economy, and expediency these courts of limited jurisdiction were created, and there appears to be no good reason why a judgment rendered by a justice of the peace should not be as binding, as lasting, and as irrefutable as the adjudications of courts of general jurisdiction, after they have been placed on a par with, and declared by statute to be, judgments of such courts. The only reason for the statute limiting to five years the period of duration of time within which an execution can issue upon a justice’s judgment appears to be the liability to destruction or imperfect preservation of the proofs of such judgments, and, when transcripts thereof are placed upon the
The statute provides that an execution may issue on a judgment in justice court at any time within five years from the entry thereof, unless such judgment has been taken to the circuit court on error or appeal, or has been docketed therein; and unless an execution has been issued upon a judgment obtained in circuit court, and returned unsatisfied in whole or in part, within five years from the time of its rendition, no execution can issue upon such judgment without leave of court first obtained on notice to the adverse party. Comp. Laws, §§ 5110, 5111, 6111. A judgment of the circuit court becomes a lien upon real property, subject to the homestead exemption, when docketed in the county where it was rendered, and so remains for a period of 10 years from the time of such docketing; and it may be made a lien, for a period of 10 years from the time such judgment was docketed in the county where rendered, upon all real estate owned by the judgment debtor, except the homestead, which may be situated in any other county of the state, by filing a transcript of the original docket with the clerk of the circuit court of such county; and wdth like effect, and in every respect the same as if the judgment had been rendered in such court, a j udgment of a justice of the peace docketed in the circuit court of the county in which the same was rendered may be made a lien upon land situated in any other county, by filing therein a transcript of said judgment, certified by the clerk of the circuit court, as required by sections 5104-5108 of the Compiled Laws. The docketing of a judgment in the circuit court of the county in which it was rendered gives notice to the world, and alone creates a lien upon real property situated therein for a period of 10 years from the date of such docketing; and the fact that a judgment was originally entered in a justice court, and therefore not a lien upon real property until a transcript thereof was docketed in the circuit court,
Concurrence Opinion
I concur in this decision. White v. Clark, 8 Cal. 512; Kerns v. Graves, 26 Cal. 156; and Young v. Remer, 4 Barb. 442,—cited by appellant as supporting his proposition that nothing is added to the life of a, justice’s judgment by its being transcripted and docketed in the circuit court, are not controlling. These cases were decided under statutes containing no such provisions as ours. The three statutes of California and New York simply declare that upon the docketing of such transcripted judgment, execution might issue thereon “in the same manner and with like effect as if issued on a judgment” of the court to which it was so transcripted. Our statute goes further, and provides expressly that from the time of docketing it becomes a judgment not only in the circuit court, but a j udgment of the circuit court. While this language is still open to construction, and its exact meaning and effect may be debatable, it is significant, and indicates, I think, the intention of the legislature to do more than merely provide, as in the California and New York cases, that an execution on such transcripted judgment shall be issued from the circuit court in the same manner as though the judgment were originally rendered there. While not as free from doubt in this case as I would like to be, I believe the decision is right, and concur in it, though I would be better satisfied with the opinion if it omitted any expression of views as to the duration of the lien
