Thomas Agar, Respondent, v. Mary J. Curtiss, Appellant

Thomas Agar, Respondent, v. Mary J. Curtiss, Appellant. Justice’s Court judgment—docketed in the county clerk’s office—issue of execution after six yea/rs—rule prior to the ■amendment made in 1894 to section 8017 of the Code of Ciml Procedure. On the 3d day oí January, 1888, Thomas Agar recovered a judgment against the defendant in a Justice’s Court of the county of Wyoming, and on the same day caused a transcript of the judgment to be filed and the judgment to be docketed in the office of the clerk of that county. On the 23d day of February, 1888, a transcript of the judgment was filed and the judgment was docketed in the office of the clerk of the county of Erie. On the 8th day of April, 1888, the plaintiff died, and on the 9th day of October, 1895, his administrators assigned the judgment to T. Delancey Agar, upon whose motion the County Court -made an order allowing execution to issue upon the judgment by the clerk of the county of Wyoming, or by the clerk of any other county in whose office a transcript of the judgment had been filed and the judgment docketed. Held, that the order was proper; That, after the transcript had been filed and docketed in the office of the clerk of the county of Wyoming, the judgment became a judgznent of the County Court of Wyoming county. Semble, that the amendment to section 8017 of the Code of Civil Procedure, made in 1894, authorizing a county clerk to file a transcript and docket the judgment, “if within six years after the rendering thereof," did not apply to the judgment in question. Appeal by the defendant, Mary J. Ourtiss, from an order of the County Court of the county of Wyoming, entered in the office of the clerk of the county of Wyoming on the 13th day of January, 1896, granting leave to issue an execution upon a judgment. On the 3d day of January, 1888, Thomas Agar recovered a judgment in a Justice Court in the county of Wyoming against the defendant upon the confession of said defendant of judgment in the sum of $393.31 damages and costs. On the 3d day of January, 1888, the plaintiff procured a transcript and caused the same to be filed in Wyoming county clerk’s office, where the judgment was duly docketed on that day. On the 23d of February, 1888, the transcript of said judgment was filed, and the judgment was docketed in the clerk’s office of Erie county. On the 8th day of April, 1888, the plaintiff, at the town of Warsaw, Wyoming county, died, and on the 30th of April, 1888, Mary Agar and Thomas B. Catton were duly appointed administrators, and letters of administration were issued to them, and they took upon themselves the duty of such administration, and on the 9th of October, 1895, they, as administrators, sold, transferred and assigned said judgment to T. Delancey Agar, who became the owner of the judgment, and recorded his assignment in the Wyoming county clerk’s office. In his affidavit, used upon the motion for leave to issue execution, he stated that the said judgment was wholly unpaid and unsatisfied; that no execution had been issued on said judgment within five years after the entry thereof, and that no execution has ever been issued. ¡Notice of motion was duly given, and the affidavit of T, Delancey Agar was duly served, and on the 13th of January, 1896, the County Court of Wyoming county made an order, after hearing the parties, in the following language: “ Ordered, that an execution upon said judgment issue in said action by the cleric of the county of Wyoming, or of any other county in whose office a transcript of said judgment may have been filed, and said judgment docketed in favor of said assignee of said judgment, to the sheriff of the proper county, upon filing in any such clerk’s office a certified copy of this order.” From that order the defendant appeals to this court. Elihu R. Sherman, for the appellant. Frank W. Brown, for the respondent. [MAJORITY — Hardin, P. J.:] Hardin, P. J.: It was the duty of the justice of the peace to furnish a transcript of the judgment. (§ 3017, Code Civ. Proc.) It was the duty of the county clerk of Wyoming county to file the same and docket the judgment “as of the time of the receipt of the transcript in the book kept by him for that purpose.” He performed that duty in pursuance of section 3017 of the Code of Civil Procedure as it existed January 3, 1888. That section then provided, viz.: “ Thenceforth the judgment is deemed a judgment of the County Court of that county and must be enforced accordingly.” In 1891 section 3017 of the Code of Civil Procedure was amended so that the county clerk was authorized to file the transcript and docket the judgment “if within six years after the rendering thereof.” It is to be observed that that limitation was not in the. section at the time the transcript was filed and the judgment docketed, to wit, January 3, 1888. It is further provided in section 3017 of the Code that, after filing and docketing, viz.: “ Thenceforth the judgment is deemed a judgment of the County Court of that county and must be enforced accordingly. * * * ” Notwithstanding the provision we have just quoted, it was held in Dieffenbach v. Rock (112 N. Y. 621; S. C., 21 N. Y. St. Repr. 570; S. C., 16 Civ. Proc. Rep. 172) that an action may not be' brought upon such a judgment after six years from the time of its rendition. It has been held in several cases that, under the law as it was prior to the amendment of 1894, an application for leave to issue execution might be granted. (See §§ 1251, 2435, Code Civ. Proc.; In re Hallock's Est., 29 N. Y. Supp. 555 ; Waltermire v. Westover, 14 N. Y. 16; Johnson, as Receiver, v. R. R. Co., 54 id. 416; Kincaid v. Richardson, 25 Hun, 237; Herder v. Collyer, 6 N. Y. Supp. 513; Green v. Hauser, 9 id. 660 ; Bolt v. Hauser, 10 id. 397; S. C. affd., 57 Hun, 567; Brown v. Hyman, 27 N. Y. Supp. 436; Townsend v. Tolhurst, 57 Hun, 40 ; I. & T. Nat. Bank v. Quackenbush, 1 N. Y. Annotated Cases, 20.) Dmidson v. Horn (47 Hun, 51) differs from the case in hand, as the transcript was filed and the judgment docketed in the County Court more than six years after the rendition of the judgment; and in the course of the opinion it was said: “ The right of the judgment debtor to avail himself of the Statute of Limitations as a bar became perfect before the transcript was filed with the clerk. And that right was a vested one which could not be defeated even by subsequent legislation. * * * And it is difficult to see how the defendant could be divested of such right by the act of filing the transcript and docketing the judgment at the instance of the judgment creditor, inasmuch as the statute does not declare that it may be done after the time such right has accrued to the judgment debtor.” Following the cases cited they lead to an affirmance of the order. All concurred. ■Order affirmed, with ten dollars costs and disbursements.