1 Duer 679 8 N.Y. Super. Ct. 679

John Cook v. T. Stokes Dickerson and Henry Brewster.

(General Term, before Oaklet, Ch. J., Dues, Campbell, and Bosworth; J.J.)

April 9th, 1853,

A judgment is not void, merely because the roll does not contain a copy of the verdict. Nor is it void when two defendants answer separately by different attorneys, and obtain a verdict, and a bill of costs is allowed to each attorney, merely because the judgment is entered in favor of the defendants jointly for the aggregate of such costs. A judgment will not be set aside for irregularity, if the motion is not made within a year after it is rendered. An execution is not void, for the reason that it is issued by an attorney, other than the one by whom the judgment was received; nor will it be set aside for irregularity on that ground alone. The items of costs, as adjusted by the clerk, and the affidavit of disbursements, must be filed, but not incorporated in the roll; they form no part of it.

Under the Code, an appeal from a judgment, though accompanied with a proper undertaking for the payment of the judgment, and the costs of the appeal, does not per se supersede an execution previously levied on personal property. The language of the Code, as to the effect of such an appeal, is identical with that of the Revised Statutes, relative to the effect of an appeal from a decree of the Court of Chancery. An appeal from the latter, and the giving such security, were decided by that court not to operate as a supersedeas.

Two separate appeals, from two several orders, were argued together: one was an appeal hy the plaintiff from an order, hearing date March 24,1853, denying a motion made hy him to set aside the judgment and execution being void, and fori irregularity.

The other was by the sheriff, from an order directing him to proceed and sell the property, which he had levied upon by virtue of the said execution. This order bore date January 29, Í853.

The action was for an alleged false imprisonment and malicious prosecution. The defendants answered separately hy different attorneys, and on the trial of the cause, on the 11th of April, 1851, the jury rendered a verdict in favor of the defendants. A separate bill of costs, in favor of each defendant, was adjusted by the clerk, on notice to the plaintiff’s attorney.

On notice to the plaintiff’s attorney, the judge who tried the cause made an order, “ that there he allowed to the defendants *680in this cause, in addition to the specific costs adjusted in this case, the sum of $125, being the full amount of per centage, on the sum claimed by the plaintiff, allowed by statute.”

After a motion made at special term by the plaintiff for a new trial had been denied, and the order denying it had been affirmed on appeal to the general term, the defendants perfected judgment; The roll was filed, and judgment docketed, and execution issued thereon to the sheriff of the city and county of Few York, on the 2d of March, 1852, and by him levied on property belonging to the plaintiff.

Hie judgment was as follows, viz.: The verdict of the jury in this cause having been entered, whereby they find in favor of both the defendants, on motion of Henry Brewster, attorney for the defendant Dickerson, and on motion of Isaac Dayton, attorney for the defendant Brewster, it is adjudged that the said defendants do recover against the said plaintiff the sum of three hundred and forty-nine dollars and thirty-seven cents, for their costs and disbursements • by them and each of them expended; this judgment being entered jointly for all the costs of defendants.” The roll, when filed, did not contain the “ verdict,” or in other words, a copy of the minutes of the clerk, at the trial, of the verdict rendered; It was subsequently inserted by the clerk. The execution issued was signed by Brewster alone, as attorney for both defendants. The motion to set aside the judgment and execution, was noticed to be made on the 9th of March, 1853.

The affidavits, on which the order appealed from by the sheriff was made, showed, that after the execution had been levied, the plaintiff, on or about the first of May, 1852, appealed from the judgment to the Court of Appeals, and gave the requisite undertaking to effect a stay of proceedings, and notified the sheriff of such appeal, and of the undertaking given. On the 28th of September, 1852, the appeal was dismissed. A copy of the rule was served on the sheriff on the 2d of October, 1852, and he was notified to proceed on the execution. Subsequently, he was notified to return the execution. • On the 20th of Movember he returned it. His return was in these words: 1 return to the within execution, that under the same I duly made a levy upon the property of the defendant in exe*681cution, and before sale thereof I was stayed by appeal duly perfected, from this Court to Court of Appeals, which is still therein pending. In conformity with notice of attorney for plaintiffs in execution, I hereby return the within.” The defendants being informed that the sheriff’s counsel considered the filing of a remitütwr necessary, to the complete termination of the appeal, obtained one to be filed with the clerk of this court, on the 27th of November, 1852. On affidavit of these facts, and on notice of motion to the sheriff, and to the plaintiff, the order of January 29, 1853, was made. A deputy of the sheriff made affidavit, that believing the appeal to the Court of Appeals, and the security given therein, operated as a supersedeas of the execution, he took no further care of the property levied on.

S. Sanxay, for plaintiff, Cook.

H. Brewster, for the defendants.

A. J. Vanderpoel, for the sheriff.

In support of the motion against the sheriff, Brewster argued as follows:

In this case the sheriff has returned his execution, stating a levy, and that an appeal stayed proceedings, &c.

If the proceedings were stayed, the sheriff need not have returned the process; but as he has done so, we claim the benefit of the levy.

There is now no stay of proceedings. At common law, in a case like this, the writ of Tendiüoni Exponas issued, of course, to complete the execution. (2 Ed. Graham Frac. 406-7; 1 Burrell, 1st Ed. 304; Cowper Rep. 406.)

This, though supplemental to theji.fa., is sometimes called an execution.

The Code, § 289, provides for execution, but makes no provision for a case like this.

We insist that we are entitled to the benefit of the levy, to *682enforce our priority and lien as of that date, and that the court have abundant power and authority to secure it to us.

The question is, how this is to be done under our new system?

1. All process "is the mandate of the court to its officer to carry into effect their judgments, and the process and officer are both under the control of this court.

2d. The court, according to their practice, have a right to compel the carrying into effect of their judgments and orders in such manner as the statutes, and their rules' and usage authorize.

The sheriff, however, objects to being required to go on, and insists that the mandate of the execution was superseded by the appeal.

To this we reply, that the appeal merely stays proceedings, leaving them to go on as soon as the appeal is ended.

At common law, and by the old statutes, writs of e^ror, with bail, in four days after judgment, did supersede the execution.

So that, then, if it was issued within the four days, it was at the peril of being set aside, or superseded, within the four days that were allowed to bring error, if bail put in when required. (1 Wendell, 81, and note; Kinne v. Whitford, 17 J. Rep. 34; Blunt v. Greenwood, 1 Cowen, 21; Jackson v. Eden, 7 Cowen, 412; Jackson v. Schauber, Id. 417 and 491; Tidd. Prac. 1070.)

The Revised Statutes have made two alterations. 1st. As to the time within which writ of error must be brought, in order to stay the collection of the judgment.

2d. That instead of superseding execution, it did not affect the execution at all of itself, but by section 29, 2 R. S. 596.

§ 30 specifies the effect of the order, which is only to stay the execution, not to supersede it, or set it aside. Delafield v. Sandford, 3 Hill, 473, shows this distinction.

The marginal note is erroneous, and tends to mislead.

The case" of Clark v. Clark, 7 Paige, 607, goes entirely on the equitable power of the court to control its process, and direct a supersedeas.

In Howard v. Pitt, 1 Shower R. 404-5, the court say, granting a supersedeas is a discretionary act, and the court intimated *683the execution was erroneous, but refused to interfere on motion, and the defendant paid the money. (Allen on Sheriffs, 45, 46, 57, and 81; 1 Burr, Prac. 304; Allen on Sheriffs, 203-4; Tidd Prac. 1060.)

The sheriff had no right to stay without some mandate .or order. There was none here. (8 Cowen, 192.)

The judgment is said to be irregular. The sheriff cannot object to irregularity. It is good as to him, unless void. (Parmley v. Hitchcock, 12 Wen. 96; Ontario Bank v. Hallett, 8 Cow. 192; Ames v. Webber, 5 Wen. 547.)

These informalities by the clerk do not affect the judgment (Renouil v. Harris, 2 Sand. 644-5).

The judgment .roll is to be made up by the clerk. In the Code, § 264 provides for verdict, &c.; § 278 tells how judgment is to be entered; § 280 for entry in the judgment book; § 281 for the judgment roll; § 283 for execution.

The court are to be guided by the judgment.

The costs, as contained in the items, form no part of the roll (Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. Prac. Rep. 226).

This answers, also, the objections of plaintiff.

It is said, however, that a joint judgment is a prejudice to the plaintiff, as it may be erroneous as to one, and not as to both, and he may be injured as to appealing.

So far from that being true, the gain is to the plaintiff, and the prejudice, if any, to the defendants, as if it is erroneous as to one, it will be reversed as to both. (Farrell v. Calkins, 10 Barb. S. C. R.; Sheldon v. Quinlen, 5 Hill, 441; Cruikshank v. Gardner, 2 Id. 333, and note, a.)

The costs are‘adjudged to the party, and if the parties interested choose to enter it jointly, the sheriff certainly cannot complain.

The plaintiff is also a gainer in the amount of sheriff’s fees, &c.

Vanderpoel, contra,

rested his argument upon the following points and authorities: '

L. The perfecting of the appeal and filing the bond to stay *684proceedings under sec. 335 of the Code of procedure, released the property from the levy. Code, sec. 335, 337, 339.

The provisions of the statute, previous to the Code, will be found 2 R. S. p. 596, sec. 27, 29, 30.

Sec. 12 of the Code prescribes the duty of the court of appeals. Certainly under this section it cannot be pretended that the sheriff must, in case of an affirmance, proceed to sell goods levied upon under the execution issued before the appeal.

2. The Revised Statutes intended to alter the common law rule, and to relieve both parties from its hardships.

At common law, no bail was necessary or allowed. The party could sue out a writ of error in four days after judgment, and if he did so, an execution issued within that time was superseded. People v. N. Y. Com. Pleas, 1 Wend. 81.

Subsequently bail was required and the debtor was allowed four days further time. 3 Bac. Abr. “ Tit.” Error, p. 354; 1 Sailed. 321, 322.

The English statutes are collected in 1st Harrison’s Dig.Tit. “ Bail in Error.”

And also, by statute, a special order of the court was made * necessary.

It will be-observed that the English statutes are very different from our own.

In England, error can still be brought at any time within 20 years without security, unless a stay is asked; but, to operate as a supersedeas of an execution previously issued, bail must be put in within four clear days after judgment signed, and this because the defendant having so long a time might delay his writ until actually issued.

The R. S. limited to four days, and rid us of the four day provision, and made other very important and salutary changes.

3. The practice and effect of this bail has been judicially declared under the Revised Statutes. Delafield v. Sandford, 3 Hill, 473; Wilson v. Williams, 18 W. 581; Sheull v. Campbell, 21 W. 287; Clark v. Clark, 7 Baige, 607.

We claim this as the effect of the bail and not of the writ, which only removes the record. ,

In appeals from the Chancellor, no provision for a stay was *685made after execution issued; there it was usual to move for a supersedeas. 2 R. S. page 686, sec. 82.

As to practice on writs of error, coram nobis, see 20 Wend.

The Code has not altered this construction.

4. By the English practice, the judgment creditor has but one security. Either the bond given to stay execution, or a bond superseding levy if made in four days, or the levy.

Our statute could not have intended to give a double security—levy and bond.

The bond with us has a double aspect.—1st. To give a security to the creditor.—2nd. To prevent personal property, the chief value of which depends upon the right to use and to transfei’ it, or which may be perishable, from being tied up.

The statute was passed to remedy the evils which existed under the previous system. A writ of error being a supersedeas, if sued out in four days the plaintiff sometimes lost his debt by the defendant wasting his goods or becoming insolvent before the judgment was affirmed.

So on the other hand the defendant was liable to have his goods sold before it was ascertained if the judgment was erroneous, or their value might, greatly depreciate. The plaintiff could only ask an ample security.

Ror was it right that the property should remain in the sheriff’s custody.

1. Inconvenience.

2. The risk and expense to which the officer would be subjected. Moore v. Westervelt, Browning v. Hanford, 5 Denio 586.

3. Ro answer to say the appeal may be dismissed, and then there is no remedy on the bond. The sheriff must not be subjected to the inconvenience of hasty legislation where his rights were clear before.

Suppose he levies upon a horse, a flock of sheep, &c. Is he to keep them ? Who is to compensate him ? See page 645 of Q. R. S. as to fees where an execution is stayed or settled before sale, $1,00.

It is not trae that a fi.fa. is an entire thing, and once commenced must be executed. The defendant is pot discharged to *686the extent of the goods levied on for it. It is now held that a levy released at the debtor’s request or for his benefit is not a satisfaction. Greene v. Burke, 23 Wend. 490; People v. Hobson, 1 Denio; Ostrander v. Walter, 2 Hill, 329.

By the Court. Bosworth, J.

The plaintiff insists that the papers attached together and filed, as constituting the judgment roll, were insufficient to make a legal and valid judgment roll, for the reason that it did not contain a copy of the minutes of the trial, or the verdict rendered in the action.

The-judgment itself recited that a verdict had been rendered ' in favor of both defendants. Prior to the making of this motion, a copy of the minutes of the trial had been inserted in the roll,informal in some of its parts, but showing a verdict in favor of the defendants, and that the court, on its being rendered, ordered judgment accordingly.

In Renouil v. Harris, 2 Sand. S. C. R. 641, this court at General Term, decided that a roll, which omitted the answer, was not a nullity, and that it was sufficient to support and give validity to the execution. That it is the' duty of the clerk to enter the judgment and make up the judgment roll, and that if it should be made up defectively, the court, if necessary, would order the defects remedied as of the date of filing the roll. See Clute v. Clute, 4 Denio, 243.

The Revised Statutes, relative to amending pleadings and proceedings, cured such a defect. 2 R. S. 425, sub. 13,14. It is an error, or defect, not affecting the. substantial rights of the plaintiff, and the Code requires the court po disregard such errors, and declares that no judgment shall be reversed' or affected by reason of such error or defect. § 176.

This section is also a conclusive answer to the objection, that the judgment should have awarded to Dickerson separately the costs taxed in his favor, and to Brewster the costs taxed in his favor, instead of awarding to the two jointly the aggregate amount of the costs taxed in favor of each.

This affected no substantial right of the plaintiff. He was adjudged to pay a certain amount of costs, and it did not prejudice any right of his, that has been shown, or suggested, to adjudge that he should pay the whole costs to the two jointly, *687instead of adjudging that he should pay a parcel of the whole amount to one, and the residue to the other. In addition to this consideration, an order was made on notice to the plaintiff, which directed “ that there be allowed to the defendants in this cause, in addition to the specified costs adjusted in this case, the sum of §125, being the fall amount of per centage allowed by statute on the sum claimed to be recovered by the plaintiff.” ISTo appeal was taken from that order, and the judgment for the amount so allowed must necessarily have been in favor of both defendants jointly. The order seems to contemplate a judgment in favor of the two jointly for their other costs, as the sum of these and of the amount allowed are to be inserted by the clerk in the entry of judgment as an aggregate sum. Code, § 311.

As a general rule, a party who seeks to set aside a proceeding for irregularity, must make his motion, at the first opportunity after the irregularity has taken place, and the attorney must show due diligence in informing-himself of it, Graham’s Pr. 702. In this case judgment was entered on the 2d of March, 1852. The costs were adjusted previously on notice to plaintiff’s attorney. This motion was noticed to be made on the 9th of March, 1853, over a year after the judgment was entered.

The Revised Statutes are peremptory, that no judgment, in any court of record, shall be set aside for irregularity on motion, unless such motion be made within one year after the time such judgment was rendered. 2 R. S. 359.

The day for which this motion was noticed to be made, was more than a year subsequent to that on which the judgment was rendered, and the judgment roll filled. If it be true, as contended, that, in such a case, there must necessarily be several judgments for the costs, then the rendition of a joint judgment, is an error appearing upon the record, and the plaintiff will have the benefit of it, on an appeal from the judgment of this court.

An execution may be issued in the name of an attorney other than the one by whom the judgment was recovered. Graham’s Pr. 356; Code, § 289.

There are many papers embraced in the judgment roll, which should have been omitted. It should not be made to include *688any papers, or orders except those enumerated in § 281 of the Code. The costs, affidavit of service of the bill, a stipulation, and some orders in no, way involving the merits, or affecting the judgment, should not be contained in it. Besides the fact that by § 281 of the Code they form no part of the roll, if an appeal be taken, the expense of printing unnecessary matter must be incurred, if they are not stricken out, and the papers to be furnished to the appellate court, will be encumbered with extraneous matter.

All papers incorporated into the judgment roll, not required by § 281, to form a part of it, may be detached by the clerk, and any amendments may be made which are necessary to make it conform with precise accuracy to the proceedings that have been had. These may be specified in the order to be entered, and any‘questions respecting them will be disposed of on the settlement of such order.

Heither the judgment roll nor the execution issued thereon is a nullity, nor was there any such irregularity, as in the exercise of a sound discretion, would justify the court in setting either aside.

The order of March 24,1853, appealed from by the plaintiffs, must therefore be affirmed with costs. The only important question arises on the appeal taken by the sheriff from the order of January 29,1853. That question makes it necessary for the court to determine what effect, the taking and perfecting of an appeal, in an action under the Code, and the giving of sdch security as operates as a stay of proceedings, have, upon an execution issued and levied on personal property prior to giving notice of the appeal.

If it merely stays farther proceedings on the execution pending the appeal, the order appealed from is right. If it of itself supersedes the execution, and releases the property from the levy made upon it by virtue of the execution, the order is erroneous.

The plaintiff insists that the former, and the sheriff that the latter is the effect of a perfected appeal and the giving of security for the payment of the debt and costs.

Prior to the Revised Statutes, filing a writ of error and putting in bail within four days superseded an execution issued and levied within the four days. But if the writ was brought *689and bail put in after the four days had expired, it did not supersede the execution, and courts of law disclaimed the power to make an order superseding it. Blanchard v. Myers, 9 J. R. 66; Kinnie, qui tam, v. Whitford, 17 J. R. 35; Beekman v. Bemus, 7 Cowen, 418; Jackson ex dem. v. Schauber, 7 Cowen, 417; Blunt v. Greenwood, 1 Cowen, 15; Payfor v. Bissell, 3 Hill, 239.

In Jackson v. Schauber,- the proceedings of the plaintiff had been stayed to enable the defendant to bring error, and to prevent the judgment being executed in the mean time. After the lapse of more than four days, and after the execution had been levied, a writ of error was brought and bail put in, and although the court held'that the time might be extended by order beyond the four days, with such effect as would enable the court to give relief, yet it merely stayed all proceedings on the execution, until the further order of the court.

The 2 R. S. 596, §§ 29 and 30, provides that the officer allowing the writ, on proper security being given, may indorse on the writ an order “ staying proceedings on the execution,” if one shall have been issued, and “ that the service of such order shall stay the further execution thereof, at whatever time such order shall have been made or served.”

Ro discrimination is here made between writs of error brought and bail perfected, prior or subsequent to the end of four days from the time of perfecting judgment. The writ, bond and order, and service of the order, may have been designed to be as effective, when interposed after, as before the expiration of the four days. The question is, do they operate as an absolute prohibition against further proceedings on the execution, or merely suspend proceedings upon it, until the writ of error is determined ?

The language is peremptory, that “the further execution thereof,” shall be stayed absolutely and unconditionally, from the time the order is served, no matter when it is served. It shall be executed no further, is the declaration of the statute. Such a construction, would give to the proceedings the same effect in all cases, as was given by prior law to a writ and bail within the four days. A contrary construction would put it out of the power of a party to obtain the relinquishment of a levy in any case, if made prior to the filing of the writ, though *690filed and bail put in within the four days. Delafield v. Sandford, 3 Hill, 473; Clark v. Clark, 7 Paige, 607.

When the statute declares, “that the service of such order shall stay the further execution thereof” (that is, of thej^./h.) “ at whatever time such order shall have been made or served,” it may well be understood to mean, that the order and service shall be as effectual a supersedeas of the execution after the four days, as filing a writ and perfecting bail within the four days was by the pre-existing law.

The statute was enacted with a knowledge of that distinction. And when it declares that the service of the order shall be as effectual when made after as within the four days, the fair meaning of it would seem to be, that though made after the expiration of four days, it shall supersede the execution and any levy that may have been made under it.

This, however, is not a case affected by the law in relation to a writ of error under the Revised Statutes, but presents the question, as to the.effect of a perfected appeal under the Code. The provisions of the Code, in relation to appeals, are copied from those of the Revised Statutes in relation to appeals from orders and decrees of the Court of Chancery.

The Code (§ 339) like the Revised Statutes (2 R. S. 607, § 86) declares that a perfected appeal, shall “stay all further proceedings in the court below, upon the judgment appealed from, or the matter embraced therein,” except that when the judgment “ directs the sale of perishable property, the court below may order the property to be sold, and the proceeds thereof to be deposited or invested, to abide the judgment of the appellate court.” Code, §342; 2 R. S. 607, §‘89, sub. 1.

In Clark v. Clark, 7 Paige, 607, the Chancellor was of the opinion, that the perfecting of an appeal and the giving of perfect security to pay the judgment appealed from and costs, did not operate to discharge the lien of an execution previously levied, and imposed as terms of an order actually superseding the execution, and directing a restoration of the property levied upon, the payment of the .sheriff’s fees upon the execution, and $12 costs of opposing so much of the motion as asked to have .the execution set aside unconditionally, on the ground that so much' of the motion was improper and could not be granted.

*691That decision was made with reference to statutory provisions almost identical in terms with those of the Code. If that decision was correct, the order appealed from by the sheriff is not erroneous. According to that decision, the plaintiff was not entitled, as a matter of right, on perfecting his appeal, to have the execution set aside, and his property released from the levy made upon it.

The Chancellor found his authority for setting aside the execution, even upon terms, in the discretion exercisable by that court.

In Burr v. Burr, 10 Paige, 169, the Chancellor affirmed the construction given by him in Clark v. Clark, that an appeal perfected after execution levied does not of itself stay the sheriff from proceeding upon the execution, and terms were imposed as a condition to the making of an order staying proceedings.

Prior to the Revised Statutes, the Court of Chancery, on causé being shown, allowed a respondent, to proceed in the court below, to enforce by execution the decree appealed from, when it was one for the payment of money, unless satisfactory security was then given, to pay the amount of the principal, interests and costs, on the affirmance of the decree. Riggs et al. v. Murray, 3 J. Ch. R. 160; Messionier v. Raumano, id. 66.

The language of the Code, as to the effect of an appeal upon proceedings in the court below corresponding with that relating to appeals from decrees in chancery, and the Court of Chancery having held in Clark v. Clark in 1839, and in Burr v. Burr in 1813, that an appeal with security for the decree and costs did not of itself supersede an execution previously levied, this court cannot adopt a contrary construction, without destroying all confidence in the uniformity of the principles and practice of the courts, regulated ,by statutes identical in their terms, and relating to the same subject matter.

The re-enactment of certain provisions of the Revised Statutes relative to appeals, with a knowledge of the construction given to the latter some ten years previously, without any modification of the clause relating to the effect of an appeal, would seem to be an approval of such construction.

Clark v. Clark and Burr v. Burr, are express authorities in support of the order appealed from by the sheriff, and the order must be affirmed, with $10 costs.

Cook v. Dickerson
1 Duer 679 8 N.Y. Super. Ct. 679

Case Details

Cook v. Dickerson
Decision Date
Apr 9, 1853

1 Duer 679

8 N.Y. Super. Ct. 679

New York



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