Smith against Mumford

Smith against Mumford. NEW YORK, May, 1828. Precedent of a declaration in debt on a judgment in a justice’s court. It is sufficient to say the party recovered so much (a sum within the justice’s jurisdiction) for such a cause, (being a matter within his jurisdiction,) without setting forth any of the previous proceedings. The declaration on a justice’s judgment averred a recovery for a debt and also 93 cents for the party’s damages as well by reason of detaining the debt as for his costs, &c. Proof of $50 debt and 93 cents, costs. Held no variance. The terms used in the declaration imported costs only. Form of entry of judgment in á justice’s docket. An action lies on a justice’s judgment immediately on its rendition, though execution be stayed by the statute On error from the Monroe C. P. The placita of the record in the C. P. was of the 4th Monday of March, 1837. -Muniford,de,clared pgain^t;Smi|h ¡jp.deljt, for fhat whereas the .plaintiff,.on the 2.8th qf jF^bruary, .1827, before MQse_s1Ch,apin, jEsg.,jone,of fjjje justices .of the.peace of the county of Monroe, at, &c. by the judgment of the said M. C., justice,of the peace as .aforesaid, recovered against .the .said defendant,, as .well a certain debt .of 50 dollars as also.93 cents,, which, was. adjudgecftobimfoythe said M. C. justice as aforesaid, for the damages .which-he •had sustained, as well .on occasion. of. thedetention of said •debt, as.fonhis posts.and charges °by,him abput hi.s suit in that behalf.expended, whereof the said defendant was,convicted, as by the docket,of,the said M. C., still remaining •in .the possession .of .the.said M. C., more fuBy. appears.; which said judgment .still remains .in full force,.strength and effect,, not An any way reversed, .vacated or satisfied ; and the plaintiff-hath .nof, as yet,.sued out or. obtained any execution of, .or upon the .aforesaid judgment .so.inform aforesaid recovered.;. wherehyan, action .hath ..accrued,, &c. Yet, &c. (usual-breach in debt.) Pleas, 1. That -the .plaintiff didnot. r e e o ver. as be complained. 2. That it did not,appear .by.any-record,or.docket that -the plaintiff recovered .as ,weH ,a .certain debt..fif ,$50, as also -93 cents, adjudged as .well for damages, as for .costs. Both these pleas concluded to the country. *3.That at thetime.of the judgment rendered, the defend* .ant resided in Monroe county, and during allfhat.tirue had a family, &c. concluding.with a verification. -Demurrer tó the-3d .plea and joinder. At the .trial of the-issues of fact, the plaintiff prayed -by the justice that he recovered a judgment for 50 dollars debt, and 93 cents costs. The docket of the. -justice was produced, and was in-these .words.: “ -William W. Mumford v. Archelaus G. Smith. Feb. 10th, 1827. Narr. Jud’t for plt’ff., $50 93. Feb. 1827. Personally served Jud’t before Selden. Feb. 28, 1827. Debt $50 Costs 93 50 93” The defendant demurred to this evidence. The jury found for the plaintiff below, subject to judgment on the demurrer. Judgment for Mumford, the plaintiff below. S. Boughton, for the plaintiff in error. The judgment, ■ as proved by the justice and the docket, was for costs; not damages and costs, as averred in the declaration. Here is a variance. The third plea is a good bar. An action on a judgment lay at the common law’before execution; but even there it- was discountenanced. (Biddleson v. Whitel, 1 Bl. Rep. 507. Simpson v. Stone, 2 id. 785.) There the debt was unjustly detained, in the words of the declaration, which is synonymous with unlawfully detained. But the statute, (sess. 47, clr. 238, § 14,) makes it lawful, under the circumstances disclosed in the plea, to detain the debt. No execution could issue short of 90 days. The legislature intend 1 ed to give the debtor time, without the enormous expense of an immediate suit in the court of record. It makes the debt in nature of one presently due, but payable at a future day. But the declaration is bad. It does not give the justice jurisdiction of the cause and person, and indeed shows that he rendered judgment for a sum beyond his jurisdiction. No plaint is shown to have been levied or suit commenced; no summoning, apprehending, appearance, confession or hearing of the defendant. (Com. Dig. Pleader, (E. 18,)- and *the authorities there cited.) Sellers v. Lawrence, Willes, 416, Ladbroke v. James, id. 201. 1 Chit. PI. 335. Service v. Hermanee, 1 John. 92. Peeblesv. Kittle, 2 id. 365. Kilburn v. Woodworth, 5 id. 41, and the cases there cited by the court. Pawling v. Bird, 13 id. 206, and the cases there cited. Bowman v. Russ, 6 Cowen, 236.) The jurisdiction of the justice is limited to $50. Here is a recovery as-debt, and damages of more. F. Whittlesey, contra. The judgment was proved to have been rendered as set forth in the plaintiff’s declaration; and there was no variance. (3 John. 429. 11 id. 166. 12 id. 296.) The minutes of the justice need not contain a fuE history of the cause. It is enough if the prominent facts appear. The demurrer admits not only these facts, but every inference that a jury might draw from them. As to the objection that the docket proves costs merely, not damages, we say the words damages and costs as here used in declaring, signify costs only. (10 Co. Rep. 115, and the cases there cited. Fitch v. The People, 16 John. 141.) The forms of judgment by confession on penal bonds in this court, confirm that view; and if correct, there is no variance. The common law, it is admitted, allows debt on judgment immediately. The statute does not take away that right. (Hale v. Angel, 20 John. 342.) As to the declaration, a recuperavit alone is sufficient, not only in declaring on judgment in courts of record, but inferior courts. (1 Wils. 316. Com. Dig. Pleader, (2 W. 12,) and cases there cited. 1 Chit. Pl. 354, 5, and cases there cited.) If we are correct in the meaning of the words damages and costs, then the justice had jurisdiction of the amount. Curia, per Woodworth, J. As to the declaration, enough is set out to give the court jurisdiction; provided the construction of the allegation touching the amount of of the judgment is, that no more was recovered than 50 dollars besides costs. Justices of the peace have jurisdiction in such cases ; and this concise mode of declaring is sufficient. It is approved in a variety of cases. (1 Chit. Pl. 354. 1 Wils. 316. 1 John. 92. 2 id. 365.) Stiles v. Stewart, 12 Wen. 473. But in Turner v. Roby, 3 Comst. 192, it was decided that in pleading the ¡judgments of inferior cotuts of limited and special jurisdiction—such as justice’s courts—it is necessary to show that the court not only had jurisdiction of the subject matter in controvérsy, but ‘that it also acquired jurisdiction of the person of the defendant." [MAJORITY] #Phe deritofér'to'thbthirdpléa Wás'wélltálcéh: 'Í3¿; notwj:tjls|an¿ing ^he "súfepMsíoñ"nfUkécatióíí5 in: cteftám ' ca’áes for 90 days, the commencement of an action of debt on the judgment ’does'- not interfere with that prohibition. It is a common law" right to sue on the judgment, which is not negatived by-the statute. • The case of Hale v. Angel, (20 John. 342,) show's "in’ what light this question is vieWed. ifnder the 11th section' of the'25 dollar act, (1 R. L. 387,) it is "provided that if the' executióh-hé réfúrñéd’ unsatisfied, the party"recovering may bring an action of debt. The execution was not returned and" yét the ‘court held that thé'action might be sustained as "soon 'as the'judgment was recovered. As tó the démurrer to evidence, I think it supported" the declaration. The docket showed there, was a judgment for $50 debt' and 93 cents costs. The allegation in the1 declaration for his damages sustained as well as costs, is in the usual form where costs only have accrued. So are the entries in'the books of practice. In debt on bond fora penalty, the entry is Tm this mannei, although costs only' afé'fflvéñf < In Fitch v The People, (16 John. 141,) this court gave an exposition‘of-the statute where, after the trial of a tfávérsé'íú a forcible entry and detainer,"it is declared that the party convicted shall pay costs and damages as shall be avVaf defiby thejustice". It was held that the words damages arid costs were \b be cohsirued as applicable to costs only. : In this case it was enough- for the plaintiff below that damages, as distinct from coste,- were not 'necessarily"'com-prehendéd' within thfe allegation in the'deí-larátidni'' Costs' in many-' c&ses are considered :as damages. ■' In '‘order to-support the proceedings,"the' court will cohsider them as' súbh, and that" thfe allegation applies to costs merely, unless1 the party taking*the objection .shows that in-fdbt the1 word' damages hadreferénce tó á recovery oí'siiúYi’dáfdages distinct"' from’ the costs.- Had that appeared, then indeéd there Would have beénnañ excess of jurisdiction. In point of fact, it appears' that the 93 cénts were1’ costs-only ."- That, however, cannot aid the plaintiff below. This*point - turn's - on the' construction to be’givén-to the words cost's and damageswhich, -.without1 further explanation-/-I think ought to be considered as applicable'to1 costs only; The judgment of the-court btelow must be affirmed. - Judgment affirmed. As" to th¿ "distinction between damages' andcosts, ‘sea Griffin v. Mortimer, 8 Wen. 540.