William H. Benaway, Pl'ff in Error. vs. Benjamin F. Bond, Def't in Error

William H. Benaway, Pl’ff in Error. vs. Benjamin F. Bond, Def’t in Error. Where a cause is tried before a Justice; and ho hears and decides the matter in dispute, and makes a memorandum on a piece of paper of what the Judgment was which ho had concluded upon, and gave suoh memorandum to his clerk, or friend, to be made out and entered upon his docket in form, but which was never so entered, nor the memorandum preserved, does not constitute a J udgment in law. A Judgment, as well in a Justice Court as in any other, must bo entered in some form, in order to constitute an available, subsisting, and tangiblo one, to bar and preclude the fresh litigation of that which was the subject of tlie suit. Though the Judgment rendered by a Justice deed not he in precise legal form, in order to be valid, yet it must be entered upon paper, and the evidence of it, on paper, be preserved, in order to constitute a subsisting Judgment. It cannot consist in evidence, that a memorandum of it was made, which has hVeh lost! Error to the Rock County Circuit Court; This was an action of assumpsit, brought before a Justice by the plaintiff in error against the defendant in error, wherein the plaintiff declared Upon a promissory note. The defendant pleaded the general issue and a former recovery of judgment. Thd plaintiff replied that there was no such record. On the trial of the cause the plaintiff offered in evidence the note declared upon.— Justice Tompkins was sworn and examined as to a judgment before him, not reduced to writing, which evidence was objected to by the plaintiff; but the evidence wTas received, subject to be considered by the Justice. This, evidence was rejected; upon consideration, and a judg-ement rendered for the plaintiff for the amount of the note and the costs of suit. An appeal was taken from this Judgment to the Circuit Court of Rock County, and the trial thereon was had at .the September Term thereof, 1848. On such trial the plaintiff below gave the note in question in evidence, and rested. The defendant below introduced Justice Tompkins as a witness, who testified that he was a Justice of Rock County for the year preceding the first of April* 1848. That as such Justice he kept a docket in which he made entries of Judgments rendered by him. That such docket was lost; that he had searched for but could not find it; that in Dedember preceding that time, there was a trial before hind, in which the plaintiff in error was plaintiff; and the defendant in error was defendant; that the plaintiff declared oil promises, and the defendant pleaded the general issue, and gave notice of Set-off; that in. the bill df particulars of the defendant Boil’d, the note in questidn; declared bn b'jr the plaintiff* Was áet off; that on the ^rial before him, it was given in evidence in set-off against the plaintiff’s claim; and that there “was such a Judication therein, that judgment was rendered and declared in Court for the defendant, for about the sum of $14,00; that he never made any entry of the Judgment on his docket, but at the time of the rendition of the .judgment, made a minute of the judgment on a piece of paper, and as he supposed, delivered it, together with the other papers, to one Moses S. Prichard, (being himself then unwell,) to make the record upon the docket; that since that time, he has not seen the said minute, though he had made thorough and diligent search for the same. To all of this evidence of said Tompkins, the defendant below objected, claiming that nothing less than the record of the jndgment could support the issue, on the part of the defendant. But the Court admitted the evidence,. The defendant then produced the said Mpses S. Prichard, who testified that when the papers were delivered to him by the Justice, Tompkins, no minute of the judgment in the cause was among the papers and that, therefor, he did not make up the record as directed by Tompkins. That he had examined his papers and had made diligent and thorough search for said minute but could not find it. That the trial of said cause was held in the witness’ office. The defendant also proved, by Charles H. Parker, that he was counsel for the plaintiff on the trial before Justice Tompkins, and that said Tompkins ascertained the amount for which judgment wgs to be rendered, by a calculation made by him on a piece of paper; b,ut could not say whether there was any writing on it or not. That the judgment was, however, declared at the time by the justice. The counsel for the, defendant requested the Judge to charge the Jury that if they found that a trial had previously been had between the same parties before Justice Tompkins in which the note in question had been properly made a set-ofij though no record or entry of a judgment had been made in the docket of the Justice, yet if they should find that the Justice, at the time of the rendéring the judgment, made a minuté of it in writing, which minute had been lost by the Justice, they must find for thé plain tiff. The Judge chargéá the Jury that if they should find1, from the 'evidence, that no dctual entry of Judgment was made in the docket of the Justice, theré was no legal and valid judgement proved, and consequently they must return a verdict for the plaintiff for the amount of the note. Thé counsel for the defendant then excepted to such charge of the Judgé, and a bill of éxceptions was made up ánd sign'ed by the Judge to this effect. The Jury found a verdict for the plaintiff for the amount of the note declared upon, and judgment w&s entered therein. Upon this judgment the writ of err'ór issued. A. Hyatt Smith, for Pfff in Error. . On the part of the plaintiff in error it was urgéd that a former suit and recovery for the same cause of action may be given in evidence under the general issue, in as-sumpsit. Cowen §• Hill’s ¡Notes on Phillip’s Evidence, 804 to 810; same, 971. 2 HiWs R;, 478; 5 do., 60; 6 do., 114. 3 Barbour's 8. G. Rep., 59. 2 John. Rep., 181; That after a cause is submitted, if á Justice render judgment in the time limited bylaw, it is a valid judgment. That the entry of it is mere evidence of its rendition as ft was at common law valid though made at any time and open to correction according to the truth. Hall vs. Tuttle, 6 Hill, 38. That the neglect pf the Justice to enter the judgment ought not to. deprivp the party of the benefit of it. Parol proof rpay be given of the rendition of a judgment. Cowen Sf. Hilfs Jiotes, 1106. 3 Barn. fy. Cress., 444. J. Jl. Sleeper, for Def’t in Error. On the part of the defendant in error it was urged that a judgment was of no effect, only so far ps the entry of it appeared. That the existence of it could not be established by mere recollection. 3 Denio, 72. 11 John. R.t 166. úreenleafs Ev., 623. That at common law. no proceeding had before a Justice could be proved by parol. 13 John. Rev , 184; 5. do., 131, 351; 3 do., 229. 10 Wendell., 526. 3 John. 429. 3 Wendell, 267; 10 do., 828. That the Statute expressly provided for the mo dp of proving judgments; and that, therefore, tjiey could pnly be proved as prescribed by it, [MAJORITY — Stow, C. J.] By the Court. Stow, C. J. This was a suit upon a promissory note admitted to have been made by Benaway, the defendant helow. The defence was a former.recovery. In suppqrt of his plea the defendant called as a witness, .William F, Tompkins, who testified that previous to the commencement of this suit a cause was tried beiore him, as a Justice pf the Pepee, between these parties in which Bond “ put the note in evidence as an off-set, and such an adjudication therein had, that judgment wa,s rendered and declared in Court, for the defendant, for about the sum of fourteen dollars; that he, the Justice, never made any entry of the judgment in his docket; but at the time of the rendition of the judgment, made a minute of the amount on a pieee of paper; and, being himself unwell, delivered, as he supposed,, the minute to one Prichard to make the reeord on the docket. That since that time he had not seen the minute, though he had searched for it.” This testimony was objected to, and finally ruled out by .the Circuit Judge, on the ground that the judgment could be proved only by the docket, or a transcript of it. Though the amount in controversy is very small, the principle involved in this case is of considerable moment, and it is important that it should be settled; and hence we have given the subject the most careful attention, and examined critically, all the numerous authorities to which we have been referred, and the result of our investigation is, that the Circuit Judge decided correctly, and that ths judgment should be affirmed. The books — that is, the American State Reports — are full of cases growing out of Justices judgments; and the questions which they have occasioned; what is a Justice’s judgment! When, and how, is it rendered! And how can it be proved! are almost innumerable; while the responses of the Courts have become in a measure, oracular, from their neyey ending contradictions. And yet it .is singular that amid all this confusion and looseness, no one ease has been found where effect has been given to- a Justice’s judgment never actually entered. Judgments recorded long after the expiratjop of the time provided by the Statute, even years after the Jpstiee had gope out of office; and those written on loose sheets of paper, have been 'held valid; but some reeord, the docket or other ■written evidence, has in all instates, as far as I can discover, been held indispensable to their authentication. We think it would be unsafe, and unwarranted in us, to dispense with this proof; certainly not in the ease before us.. The Justice, no doubt, made, a decision, but by his negligence in not entering it in his docket, and by the negligence of the party who desires to avail himself of it in not procuring it to be so entered, there is no legal evidence of its existence as á judgment; nor does 'any such state of things Sppear ás to dispense with this proof. — - The accident that the Magistrate happened at the time to be unwell, and gave his memorandum to his clerk, is no excuse for not having the judgment docketed afterwards. Judgment affirmed.