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the court, or waived by the opposite party. In Renouil v. Harris, however, 2 Sandf. S. C. R. 641, 1 C. R. 125, the principle is laid down, as before stated, that the court will sustain a judgment, notwithstanding errors of the clerk, but directing the necessary amendments; and, in Neele v. Berryhill, 4 How. 16, it was also solemnly decided that the parties to an action will not be allowed to suffer by the omissions or mistakes of a clerk, attorney, or other officer of the court, where a substantial right is involved; and an amendment was there directed in a judgment by confession omitted to be signed by the clerk, notwithstanding, and in derogation of the rights of subsequent judgment creditors, whose charges had been regularly perfected. The latter principle may, therefore, be fairly considered as established.

The judgment, when entered and signed as above, is then perfect, so far as regards its due record, and its effect on other proceedings in the court in which it is entered. As regards however its enforcement, whether by the active remedy of execution, or by the passive operation of a lien on the property of the party against whom it is rendered, the further ceremony of docketing is necessary; and, to accomplish these several purposes, it must be so docketed in every county into which execution is proposed to be issued, (V. sec. 287,) or in which the judgment debtor has property which may be affected by such lien. In Haverly v. Becke, 4 Comst. 169, a mistake on the part of a judgment creditor, in not duly docketing his judgment in the proper county, was held not to affect his lien on certain lands, the purchaser of which had notice of the judgment, supposed it to be valid, and had undertaken to pay it as part of his purchase money. He held the lands subject to an equitable lien, and that, although the judgment eventually turned out to be for a larger amount than he had supposed, at the time of his purchase.

The provisions of the Code in the respect to the docketing and lien of judgments are contained in section 282, and run as follows:

$ 282. On filing a judgment roll upon a judgment, directing in whole or in part the payment of money, it may be docketed with the clerk of the county where it was rendered, and in any other county, upon the filing with the clerk thereof a transcript of the original o docket," and shall be a lien on the real property in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of docketing thereof, in the county in which such real estate is situated, or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the county where it was rendered. But, whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, and the appeal perfected as provided in the Code, the court in which such judgment was recovered may, on special motion, after notice to the person owning the judgment, in such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment that the same is “ secured on appeal," and thereupon it shall cease, during the pending of the appeal, to be a lien on the real property of the judgment debtor as against purchasers and mortgages in good faith.

The clauses allowing a special entry on the docket in cases where an appeal has been taken, and security given on that appeal, are new and important, having been first inserted on the amendment of 1851. As yet, that amendment being so recent, no decisions appear upon the subject, but there can be no doubt as to the remedial and beneficial nature of the provision. For the present, the exact form of application for this purpose, and of the notice to be given to the judgment creditor, remain in some measure uncertain, until settled by express decision. A motion on the usual notice would seem, primâ facie, to be the proper form; or possibly, where the gaining time is of importance, an order to show cause might be held sufficient. A certified copy of the direction of the court, when obtained, as above, would seem to be the proper authority to the clerk of any county in which the judgment may have been docketed, to make the entry thus prescribed ; and, when the judgment has been docketed in more counties than one, it will, of course, be necessary to obtain a proportionate number of copies of the order in question, in order to insure its due entry in each of those counties. It will be observed, also, that such application can only be made to the court in which the judgment was recovered ; and, therefore, an order of this nature cannot be duly obtained from a county judge, or from one of any other tribunal. In the first district, such order might doubtless be made out of court, under sec. 401 : in the others it seems equally clear that the special term is the most proper medium of application, and it seems somewhat doubtful whether that application can be otherwise entertained. The practice, however, remains, as before stated, to be settled, either by special rule, or reported decisions.

The suffering an execution to remain dormant in the sheriff's hands, does not affect the validity of the lien under such judgment, when duly docketed. — Muir v. Leich, 7 Barb. S. C. R. 341. The limited period of ten years is, however, imperative ; and, after its expiration, such lien will be absolutely gone, as against bonâ fide purchasers or mortgages, and a perpetual stay of execution will be granted as against them, unless the judgment creditor satisfy the court, by specific proof, and not by mere allegation, that the purchases or mortgages in question do not bear that character.-Wilson v. Smith, 2 C. R., 18.

The proceedings for the purpose of docketing a judgment as above, are simple and easy. A transcript, or more than one, if necessary,

is obtained from the clerk of the court in which the judgment is entered, and such transcript, or a duplicate original, is then filed in each county in which the judgment is sought to be docketed for the above purposes. On filing such transcript, and payment of the fee thereon, the operation is complete. A justice's judgment, when duly docketed in the county court, is, by that proceeding, placed on the same footing as that of a court of record, with reference to ulterior proceedings.—V. Conway v. Hitchins, 9 Barb. S. C. R. 378.

The transcript should, properly, be certified by the clerk of the court in person ; who is entitled to a fee of 6 cents for that service, and a similar fee is payable to the clerk of each county in which the judgment is docketed. V. Laws of 1840, c. 386, sec. 5, 2 R. S., p. 638. In the absence of the clerk, the deputy clerk may certify to a transcript, and such transcript will be good, although the fact of the clerk's absence is not shown upon its face. The law will presume it, and that the document has been duly issued.-Miller v. Lewis, 4 Comst. 554.

The judgment record, though final in its operation, is capable of amendment on a proper application, under the authority of the cases before cited. See also Aldrich v. Thiel, 3 C. R. 91. In the case of a final decree, however, regularly entered and enrolled, the court will not entertain a motion to vary it, unless by the consent of all parties, or in respect of matters which are quite of course, In no other case will any alteration be made in a decree on motion, the only mode by which it can be effected will be by bill of review.-Picabia v. Everard, 4 How. 113. A decree may, however, be amended by motion at special term, with respect to provisions merely consequent on directions already given. Thus, where an insufficient notice of sale had been directed on a decree for partition, the court, on setting aside such sale, directed an amendment. Romaine v. McMillen, 5 How. 318.

, The above observations complete those in relation to the formal entry of judgment, generally considered. The special forms, in particular cases, and any other consequent proceedings before the issuing of execution, will be considered in the succeeding chapters, according to the plan laid down at the outset of the present.

CHAPTER I I.

ON JUDGMENT BY DEFAULT, OR ON CONFESSION.

The above category includes the numerous class of judgments entered on the motion of the plaintiff, without actual contest by the party against whom the recovery is sought. The entry of judgment by confession will be reserved for the conclusion of the chapter, the subject of default being previously considered.

Default is of two kinds, actual and imputed, and the former may be again made the subject of a double subdivision, viz. : default to defend, or default to sustain a defence when inade. The class of actual default includes the entry of judgment on a failure to answer, or on failure to appear on the trial. The class of imputed default comprises all cases of untenable defence, declared to be so by the court, either on the hearing of an issue of law, or on the success of an application to strike out such defence, on the ground of its being untenable. The different considerations on each of these subjects will accordingly be entered upon in regular order.

The first that presents itself, is the entry of judgment on a complete omission to defend, a proceeding of frequent occurrence. The provisions of the Code, upon this subject, are long and special, and run as follows :

§ 246. Judgment may be had, if the defendant fail to answer the complaint, as follows:

1. In any action arising on contract, for the recovery of money only, the plaintiff may file with the clerk, proof of personal service of the summons, according to the provisions of section 130, and that

In case

no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to bim, shall assess the amount due to the plaintiff thereon : and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter the judgment for the amount so assessed or ascertained. the defendant give notice of appearance in the action, he shall be entitled to five days' notice of the time and place of such assessment.

2. In other actions, the plaintiff may, upon the like proof, apply to the court, after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the prcof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the

recovery

of

money only, or of specific real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or, if the examination of a long account be involved, by a reference as above provided. If the defendant give notice of appearance in the action, before the expiration of the time for answering, he shall be entitled to eight days' notice of the time and place of application to the court for the relief demanded by the complaint.

3. In actions where the service of the summons was by publication, the plaintiff may in like manner apply for judgment, and the court must thereupon require proof to be made of the demand mentioned in the complaint, and, if the defendant be not a resident of the State, must require the plaintiff or his agent to be examined on oath, respecting any payments that have been made to the plaintiff or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover.

Before rendering judgment the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court, touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defence.

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