Opinion
January Term, 1899.
Strait Betts, for the appellant.
C.C. Van Deusen and A. Frank B. Chace, for the respondent.
In Rowe v. Peckham ( 30 App. Div. 173) we held that the County Court had authority, even though no appeal had been taken, to inquire into the jurisdiction of the justice to enter the judgment upon which the transcript was based; and if it found that the justice had no jurisdiction, it might lawfully vacate any execution issued out of that court upon a judgment entered upon such transcript, and enjoin all further proceedings thereon. We were not then called upon to decide whether the transcript issued by the justice, and the judgment docketed thereon, could also be vacated by the County Court. But the principle which authorizes the inquiry and the vacation of the execution extends to the vacation of the judgment in the County Court, which is the basis of that execution. If the judgment is not vacated, it stands upon the record of the County Court as a lien against the defendant's real estate. If such a judgment had been obtained upon summons purporting to issue out of that court, it would be common practice to move in that court to vacate it on the ground that the summons was never served ( Dutton v. Smith, 10 App. Div. 566) ; and, by analogy, in this case so much of its records as purports to be a judgment of that court may be vacated for the reason that it has been rendered without the service of any process upon defendant.
It appears from the opinion of the county judge, in the record before us, that such was the extent of the order which he directed in this case.
The order as actually entered, however, goes further and assumes to vacate and set aside the judgment entered by the justice, although it does provide that such vacation shall be "without prejudice to the right of the plaintiff to sue on the judgment of the justice herein."
The order made by the county judge of Columbia county was a judge's order, made ex parte, and does not appear to have ever been entered in the clerk's office. It seems to have been made upon the same papers which were thereafter used to obtain the order made by the Rensselaer County Court, and operated only as a stay pending the hearing and decision of that motion. If irregular, the proper remedy was by motion to the judge granting it that it be modified or set aside.
I see no reason for reversing it upon this appeal. ( People ex rel. Schlehr v. Common Council, etc., of Buffalo, 30 Hun, 636; Aldinger v. Pugh, 57 id. 185; Hoyt v. Mann, 7 N.Y. St. Repr. 420; Code Civ. Proc. § 1304.)
We are of the opinion that the order of the County Court appealed from should be modified so that it vacate, as against the defendant Irene F. Southard, merely the transcript and judgment entered thereon in the County Court and the execution issued on the same, and that it enjoin all further proceedings against her upon the same; and, as so modified, such order should be affirmed, without costs.
All concurred, except PUTNAM, J., not acting.
Order modified as per opinion, and, as modified, affirmed, without costs.