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under any circumstances. See Me Vamara v. Bitely, 4 How. 44; Cusson v. Whalon, 5 How. 302; 1 C. R. (N. S.) 27; and Wendell v. Vitchell, 5 How. 424. In the last case it was, how. ever, considered that, in matters of mere form, the court might permit an amendment, according to the old practice. See 19 Wend. 123.
The view taken in the above cases has, however, been controverted by those of Kiddle v. Degroot, 1 C. R. (N. S.) 202 and 272, and Jewett v. Jewett, 6 How. 185; the latter a decision of the general term; in both which cases it was expressly held that, although the same cause of action on the one hand, and the same ground of defence on the other, must be relied on, as in the justices' court, yet, with this limitation, the same forms of pleadings are applicable, and the same rules will govern, as in other cases in the court of higher jurisdiction. Such was also the case under the Code of 1848, Royce v. Brown, 7 Barb. S. C. R. 80, 3 How. 391,—and this view seems to be decidedly preferable.
For the purposes of appeal, proceedings of this nature will be held to be actions in a justices' court, and the court of appeals has accordingly no jurisdiction to review the decision of the supreme court thereupon.
A system of rules with reference to the pleadings and practice in these courts, is laid down by section 64 of the Code. which, in a great many respects, but not altogether, supersedes the provisions of the Revised Statutes in reference to these tribunals in general, including the proceedings therein, the removal thereof by certiorari, and the review of their decisions. The whole of those provisions must therefore be still made the subjects of careful study, in connection with those of the Code. They will be found in titles III. and IV. of chap. II. part III. of the Revised Statutes, 2 R. S. 224 to 275, and in various subse. quent acts on the same subject, collected in the third edition, vol. 2, pages 323 to 373, and likewise at pages 708 and 709 of vol. 3. The recent organization of the marine court will be found in c. 144 of the laws of 1819, and its original constitution in the revised laws of 1813. C. 22 and 53 of the same year (1849), contain provisions with reference to the justices' courts of Rochester and Hudson; whilst c. 196 and 514 of the laws of 1851, have reference to those in the city of New York. In certain respects, such as the form of summons and other proceedings not expressly provided for by the Code, the marine court and justices' courts of New York are governed by their own statutory practice, and not by that prescribed by the Revised Statutes in reference to justices' courts in general. See Williams v. Price, 2 Sandf. S. C. R. 229; Cohen v. Coit, 3 C.R. 23; Jackson v. Wheedon, 3 C. R. 186; Klenck v. De Forest, 3 C. R., 185, and other cases. In all matters, however, which are regulated by the provisions of the Code, those provisions are applicable to all, without distinction. See sec. 68.
The leading characteristics of the system thus established is the admissibility of oral and unverified pleadings in all cases, except where an answer of title being in question has been put in; coupled with the most unlimited powers of amendment and disregard of mere technical objections. By subdivision 15 of section 64, the provisions of the Code respecting the forms of and parties to actions, the times of commencing them, the rules of evidence, and the service of process on corporations, are made applicable to these courts ; the last of these particulars being a provision on the recent amendments; but, in all other respects, as before adverted to, the practice in them is totally diverse from and irreconcilable with that of the higher courts, as established by that measure. It remains to notice some few decided points in reference to that practice, which may bear upon the exercise of the appellate jurisdiction of the courts above.
The jurisdiction of these courts being of a limited nature, is of course subject to the same strict rules before adverted to, under the head of county courts. The mere issuing of a summons however, prima facie, confers jurisdiction; and, if such summons be served within the limits of the authority of the court, the presumption will lie that it was duly served. If a warrant be issued, the reverse is the case, and the facts warranting its issue must all be strictly proved.-Barnes v. Harris, 4 Comst. 374.
The justices' courts have jurisdiction in actions against domestic, but none whatever in those against foreign corporations. This last objection is, however, capable of being waived, if the defendants appear and plead to the merits, without insisting on it.-Paulding v. Hudson Manuf. Co., 3 C. R. 223.
In the city of New York, where the jurisdiction of these courts is exercised with reference to the different wards of that city, the residence of one party within a ward is sufficient to confer jurisdiction ; but where both are non-resident, the objection will be fatal, and cannot be waived.-Murphy v. Mooney, 2 Sandf. S. C. R. 288; Cornell v. Smith, Id. 290.
The summons must state on its face the cause of action, or no jurisdiction is conferred, and it will be held to be a nullity.Ellis v. Merritt, 2 C. R. 68; Cooper v. Chamberlain, 2 C. R. 142. It must not be for a shorter term of notice than that prescribed by statute. King v. Dowdall, 2 Sandf. S. C. R. 131, and the service of it must be properly and duly authenticated.-Manning v. Johnson, 7 Barb. S. C. R. 457. The two last defects will, however, be waived by appearance, and answer without objection.--Heilner v. Barras, 3 C. R. 17.-Robinson v. West, 1 Sandf. S. C. R. 19.
Objections in the nature of a demurrer must be raised by the pleadings, or they cannot be taken afterwards, Jackson v Wheedon, 3 C. R. 186. On the same principle a plea of the general issue was held to be sufficient on which to ground the introduction of any testimony at the trial, where no objection was made to it for want of certainty, at the time of the joinder of issue.—Durfee v. Eveland, 8 Barb. S. C. R. 46.
A plea of payment or set off in these courts, is an admission of the plaintiff's case, nor can the latter be contested under such circumstances, if the defence on the above grounds fails. De Courcy v. Spalding, 3 C. R. 16; Young v. Moore, 2 C. R. 143. In Everitt v. Lisk, 1 C. R. 71, a refusal to answer was held to be an admission of the plaintiff's claim, and to preclude the defendant from his right to a cross examination. This decision was, however, under the Code of 1848, prior to the establishment of the present rules by sec. 64.
The plaintiff cannot take judgment by default, without proving his case, Muscott v. Miller, 6 L. O. 423; Smith v. Falconer, 1 C. R. 120; 2 Sandf. S. C. R. 640 ; a point indeed clear on the terms of the section itself. Nor can he, under any circumstances, take judgment for an amount greater than that mentioned in the summons, Partridge v. Thayer, 1 C. R. 85; 2 Sandf. S. R. R. 227. A judgment taken on the plaintiff's default to furnish a bill of particulars was held to be bad, under the Code of 1848, in Winslow v. Kierski, 2 Sandf. S. C. R. 304, but the amended measures contain special provisions on this subject.
In Mills v. Winslow, 3 C. R. 44, it was held that an action on the judgment of an assistant justice's court, brought without
the leave prescribed by sec. 71, could not be maintained, the judge treating those courts, and also the marine and assistant justices' courts of New York, as not within the definition of * courts of a justice of the peace;" see also Cohen v. Coit, 3 C. R. 23. In McGuire v. Gallagher, 2 Sandf. S.C.R. 402, 1 C. R. 127, a contrary view is taken on this point, and it was also held that the restrictions in sec. 71 are in no manner retrospective, in relation to causes of action accrued before the passage of the Code.
The ordinary principles of law with reference to the regular conducting of a trial by jury, are applicable to those taking place in these courts. In Bell v. Davis, 8 Barb. s. C. R. 210, a judgment was accordingly reversed because the minutes of counsel had been laid before the jury. Where, however, at the request of the parties, the justice went into the jury room, while they were deliberating on their verdict, a consent that he should read certain testimony to them was implied ; Hancock v. Salmon, 8 Barb., S. C. R. 564; nor will the due exercise of the justice's discretion on the trial be interfered with, as, for instance, his refusal to allow additional evidence to be taken after a motion for a non-suit, Reed v. Barber, 3 C. R. 160.
In these courts, the strict rules which bind the judges of the higher tribunals, do not prevail; and therefore the partner or clerk of the justice, may practice before him.-Fox v. Jackson, 8 Barb. S. C. R. 355.
The judgments of these courts are enforceable by process issued under their authority, according to the powers conferred on them by the Revised Statutes, (such powers embracing that of arrest in many cases), but those judgments are not liens upon real estate, unless transcripts of them are docketed in the office of the clerk of the county, as prescribed in sec. 63, and unless for sums exceeding $25. The delivery of such a transcript on the part of the justice, is compulsory, and may be enforced by mandamus. From the time of docketing, they become in effect judgments of the county court, and are in all respects enforceable as such. It would seem, however, that in one respect they acquire no greater weight by this process, but still remain on the footing of judgments of inferior courts; and that the lien on them, unless revived, will accordingly cease at the expiration of six years.-- Young v. Remes, 4 Barb. S. C. R. 442. See 2 R. S. 359, sec. 5. As regards the statute of limita
tions, however, all judgments whatever seem now, by sec. 90 of the Code, to be placed on an equal footing. The transcript must correspond with the judgment in all respects, or the docketing will be void, nor can any material variance be either amended or disregarded by the court above.—Simkins v. Page, 1 C. R. 107. A defect in the issuing of execution, on the ground that the judgment had not been properly docketed, was, however, held in Roth v. Schloss, 6 Barb. S. C. R. 308, to be amendable, and the judgment was there allowed to be docketed nunc pro tunc.
The appeal from all these tribunals lies, as before stated, to the county courts, or, in New York, to the court of common pleas of that city.