TITLE VI. Judgment; and docketing the same. SEC. 3010. Judgment by confession. 3011. Id.; mode of confessing judgment. 3012. Id.; when void. 3013. Judgment of nonsuit. 3014. Judgment upon verdict, etc. TITLE 6. 3015. When judgment to be rendered. 3016. Remitting part of verdict, etc. 3017. Transcript of judgment; docketing the same. 3018. Id.; when execution may issue against person. 3019. Id.; in action for a chattel. 3020. Judgment against joint debtors. 3021. Docketing the same; action thereupon. 3022. Docketing judgment in another county. 3023. Justice may give transcript, after expiration of his term. by con § 3010. A justice of the peace may enter a judgment upon the Judgment confession of the defendant, in any case, where the amount con- fession. fessed does not exceed the sum of five hundred dollars, with such a stay of execution, if any, as is agreed upon by the parties to the judgment. [2 R. S., 245, Part 3, ch. 2, tit. 4, § 113 (3 R. S., 5th ed., 443; 2 Edm., 262), as modified by Co. Proc., § 53, subd. 8; amended by substituting the word, "to," for "interested in," after " parties."] § 3011. A judgment upon confession shall not be rendered, Id.; mode unless the following requisites are complied with: 1. The defendant must personally appear before the justice. 2. The confession must be in writing, signed by the defendant, and filed with the justice. 3. If the judgment is confessed for a sum exceeding fifty dollars, the confession must be accompanied with the affidavit of the defendant and of the plaintiff, stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein, over and above all just demands which the defendant has against the plaintiff; and that the confession is not made or taken with intent to defraud any creditor. [Id., § 114.] of confessing judgment. § 3012. A judgment confessed, otherwise than as prescribed in ra.; when the last section, is void, as against every person, except a purchaser void. TITLE 6. Judgment of non suit. Judgment upon ver in good faith of property, real or personal, thereunder, and the de fendant making the confession. [Id., § 115.] § 3013. Judgment of nonsuit, with costs, must be rendered against a plaintiff prosecuting an action before a justice of the peace, in either of the following cases: 1. If he discontinues or withdraws the action. 2. If he fails to appear within one hour after the summons is returnable, or within one hour after the time to which the trial has been adjourned. 3. If he is nonsuited upon the trial. [Id., § 119, amended by consolidating subd. 2 and 3, and omitting subd. 5, which read as follows: "If he shall not appear on the coming in of the jury to hear their verdict." See § 3007, ante, and note.] § 3014. Where a verdict, or the decision of the justice upon & dict, etc. trial without a jury, is rendered in favor of either party, the justice must render judgment against the adverse party in conformity thereto, with costs, except as is otherwise specially prescribed by law. [Substituted for id., §§ 120 and 121, which read as follows. 120. Judgment for the defendant, with costs, shall be rendered, whenever a trial has been had, and it be found by verdict, or by the decision of the justice, that the plaintiff has no cause of action against the defendant." §121. If upon the trial of the cause, or upon an ex parte hearing, in those cases where it may be had on the defendant's failing to appear, a sum, in debt or damages, shall be found in favor of the plaintiff, then judgment shall be rendered against the defendant for such debt or damages and the costs." These sections manifestly failed to include many cases, even before the jurisdiction of a justice's court was extended, by the acts passed since the enactment of the Revised Statutes; and when this Code was enacted, they had become wholly insufficient. Judgment upon the failure of the defendant to appear or answer, is fully provided for in § 2988, ante. The words, "except as is otherwise specially prescribed by law", refer to cases, where the judgment does not strictly conform to the verdict (as where the prevailing party remits a part of the verdict, post, 3016); or where costs do not follow the recovery (as where an offer has been made, etc.); or where a party dies before the verdict (see § 765) and the like. The justice may enter a judgment, in an action for a personal injury, where a party dies after verdict, or decision, 764, but ho cannot enter judgment in any case, where a party dies before the verdict or decision, § 765. These two sections are made applicable to these courts by § 3347, subd. 6.](*) 68 TITLE 6. judgment rendered. § 3015. Where the plaintiff is nonsuited, or discontinues or when withdraws the action; or where judgment is confessed, or a verdict to be is rendered; or where, at the close of the trial, the defendant is in custody; the justice must forthwith render judgment, and enter it in his docket-book. In every other case, he must render judgment and enter it in his docket-book, within four days after the cause has been finally submitted to him. [Id., § 124. See Keating v. Serrell, 5 Daly, 278; and 1 Sheld. 379.] part of etc. § 3016. Where a verdict, or the decision of the justice upon a Remitting trial without a jury, is rendered in favor of either party for a sum verdict, of money, the prevailing party may remit any portion thereof, and take judgment for the residue. [Id., § 125, amended, so as to recognize the right of a party to remit a part of the verdict in any case, as well as where it is for a sum exceeding the jurisdiction of the justice, in accordance with the ruling in Clark v. Denure, 3 Denio, 319.] of judg ment docketing the same. § 3017. A justice of the peace who renders a judgment, except Transcript in an action to recover a chattel, must, upon the application of the party in whose favor the judgment was rendered, and payment of the fee therefor, deliver to him a transcript of the judgment. The county clerk of the county, in which the judgment was rendered, must, upon the presentation of the transcript, and payment of the fees therefor, indorse thereupon the date of its receipt, file it in his office, and docket the judgment, as of the time of the receipt of the transcript, in the book kept by him for that purpose, as prescribed in article third of title first of chapter eleventh of this act. Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly; except that an execntion can be issued thereupon only by the county clerk, as prescribed in section 3043 of this act, and that the judgment is not a lien upon and cannot be enforced against, real property, unless it is for twentyfive dollars or more, exclusive of costs.(^) 66 [Co. Proc., § 63, first two and last sentences, amended by inserting the words, except in an action to recover a chattel;" by confining the power to issue the execution to the county clerk; thus settling, in the negative, the question, whether an attorney can issue an execution, in accordance with the ruling in Thompson v. Jenks, 2 Abb. Pr., N. S., 229, and Brush v. Lee, 3 id., 204; S. C., 36 N. Y., 49.] 69 (a) Section 3043 will be found on p 356; it was not deemed necessary to copy the provisions of ch 11, tit. 1, art. 3, although referred to in this section, as they do not relate to any thing to be done by the justice or in his court. § 3018. If the action, in which the judgment is rendered, is one may issue of the actions specified in subdivision first or second of section 2895 TITLE 6. Id.; when execution against person. Id.; in action for a chattel. of this act, or if an order of arrest was granted, and was executed, in a case specified in subdivision third of that section, and, in either case, if the defendant is a male person, the justice must insert, in each transcript given by him, as prescribed in the last section, the words, "defendant liable to execution against his person"; and a like note must also be made in the docket of the judgment, made by the county clerk. [New; intended to supply a casus omissus in the former statute, which provided no mode whereby a county clerk could officially ascertain, whether he was authorized to issue an execution against the body.] § 3019. A justice of the peace, who renders judgment for a chattel, which has been delivered to the unsuccessful party, or for the value thereof, in case a return thereof cannot be had, must, where the value exceeds twenty-five dollars, upon the application of the party in whose favor the judgment was rendered, and payment of the fee therefor, deliver to him a transcript of the judgment, stating the particulars thereof. The county clerk of the county, in which the judgment was rendered, must, upon the presentation of the transcript, and payment of the fees therefor, indorse thereupon the date of its receipt, file it in his office, and docket the judgment, as of the time of the receipt of the transcript, in the book kept by him for that purpose, as prescribed in article third of title first of chapter eleventh of this act, and must also enter in the docket the particulars of the judgment, as stated in the transcript of the justice. Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly; except that an execution can be issued thereupon only by the county clerk, as prescribed in section 3043 of this act. [New. The former statute made no provision for docketing a judg ment in an action for a chattel, or for issuing an execution thereupon by the county clerk. It is believed that this section provides for the only case, where it is necessary that any special provision therefor should be made. Unless the chattel has been delivered to the unsuccessful party, the rights of a party, who recovers a judgment in such an action, are sufficiently protected by the ordinary execution to be issued by the justice.] TITLE 6. against debtors. § 3020. Where an action is brought against two or more per- Judgment sons, jointly indebted upon contract, and the summons is served upon joint one or more, but not upon all of them, if the plaintiff recovers judg ment, it must be entered against all, in the mode prescribed in section 1932 of this act. Sections 1933, 1934, and 1935 of this act apply to such a judgment, and to each execution issued thereupon; except that, where the justice or the county clerk issues the execution, he must make the indorsement prescribed in section 1934 of this act.(*) [Substituted for §§ 122 and 123 of the R. S., and see id., §§ 141 and 142. The effect of this section is merely to make the provisions, relating to an action brought against joint debtors in a court of record, and to the judgment and execution thereon, applicable to proceedings in a justice's court.] the same; thereupon § 3021. The justice who gives a transcript of a judgment, taken Docketing as prescribed in the last section, must distinctly designate, in the action transcript, each defendant who was not summoned. Thereupon the clerk, who dockets the judgment, must make in the docket, under or opposite the name of each defendant not summoned, an entry, as prescribed in section 1936 of this act; and the provisions of that section apply to the judgment so docketed. An action, upon a judgment so docketed, can be maintained in a justice's court against the defendants summoned, only in a like case, and with like effect, as if they were the only defendants in the original action. An action may be maintained against the defendants not summoned, as prescribed in section 1937 of this act, in any court having jurisdiction thereof; and the plaintiff is entitled to costs, upon recovering final judgment therein, where the sum remaining unpaid is twenty-five dollars or more.(") [New. The principal object of this section is to settle the vexed question, under the former statute, whether a justice's court or a county court had jurisdiction of an action to charge the remaining defendants. In Johnson v. Smith, 14 Abb. Pr., 421, it was held, that a justice had such jurisdiction; and in Ticknor v. Kennedy, 4 Abb. Pr., N. S., 417, it was held that the county court had no jurisdiction under Co. Proc., § 375, because the judgment was not taken under id., § 136. It is conceived that the latter case, if it truly stated the former rule of law, would have led to so many inconveniences, that the principle which it established, was properly changed by express legislation.] (a) The sections referred to are on p. 313. (b) Sections 1936 and 1937 are on page 314. |