American Exchange Bank v. Smith

6 Abb. Pr. 1

Opinion

By the Court.

Footnotes

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Bosworth J.—As As to the ground first alleged to establish irregularity, it is to be observed that the judgment-roll does not show that the note was not produced to the clerk, nor that he did not assess the damages thereon. It therefore follows that the judgment is not irregular, merely because it does not affirm that these things were done, unless the Code requires that it should appear by the record itself that the note was produced to the clerk, and that he assessed the amount due thereon.

Section 281 of the Code specifies the papers that shall constitute the judgment-roll.

If there is no answer, it is to consist of 6i the summons and complaint, or copies thereof; proof of service, and that no answer had been .received; the report, if any; and a copy of the judgment.”

The answer having been withdrawn, the plaintiff was at liberty to perfect his 'judgment in the; same manner as if no answer had been served.

Section 246, subdivision 1, in a case like the present, requires the clerk, on production of the note to him, to assess the amount due to the plaintiff thereon, and enter judgment for the amount so assessed. In cases other than those of actions on instruments for the payment of money only, and on which he may assess, he is to ascertain the amount due to the plaintiff from his examination under oath, or other proof, and enter judgment for the amount so ascertained.

He is not, in terms, required to make any report or certificate of the amount assessed, or ascertained to be due. It was perhaps deemed unnecessary that he should be required to make or file a certificate of the amount so assessed or ascertained, because he is required to- enter a judgment for such amount, and that will show the sum which he ascertained to be due. The attorney, in such a cáse, cannot, as under the former practice, enter the judgment, but the clerk enters it, and the judgment thus entered by himself will show as fully and formally the amount which he assessed as due to the plaintiff on the note, as any other paper could, whether in the form of a certificate or report.

Under subdivision 2, of section 246, when no answer is interposed, the court may order a reference, in certain cases, to ascertain the damages which the plaintiff shall recover, and in others to ascertain a fact to enable the court to give judgment, or to carry the judgment into effect. In the latter cases a report, of necessity, must be made, and such report must form a part of the judgment-roll.

Prior to the Code, in all cases in which the damages were assessed by the clerk, as a matter of course, the Revised Statutes, while they required the clerk to report to the court the sum which he ascertained to he due to the plaintiff (2 Rev. Stats., 357, § 7), and declared that the court should give judgment for the sum reported, unless it modified or set aside the report {lb., § 8), also enacted that “ the judgment so rendered shall be entered on the record, without stating any reference to the clerk, or any proceedings in consequence thereof; and the damages shall be stated as having been assessed by the court” {lb., § 8). The Code, in omitting to require the judgment-roll to show that the note was produced to the clerk, and that he assessed the amount due thereon, left the practice, in that respect, as the Revised Statutes had prescribed it.

•We conclude, therefore, that when an unverified complaint states as a cause of action a promissory note made by the defendant, it is not necessary that the judgment-roll should state that the note was produced to the clerk, and that he assessed the amount due thereon.

Ro inference can be drawn from the silence of the judgment-roll, as to these facts, that he did not do his whole duty. On the contrary, the inference from it is, that he did all the Code directs.

In the present case, the papers filed as constituting the roll, tend to show, irrespective of the judgment itself, that he assessed the damages. There is a statement of the principal of the note, of the amount allowed for interest, and for protesting the note, and to the aggregate of these is added the costs as the clerk adjusted them. Ro point is made that either of these items is erroneous.

This being a case in which the clerk might assess the plaintiff’s damages, the record does not omit to state any thing which is essential to a regular or valid judgment.

As the motion was not made to obtain relief from the judgment on the merits, but merely to vacate it on the ground of irregularity alone, the order appealed from must be affirmed, with $10 costs.

Present, Duer, C. J., Bosworth, Slosson, Hoffman, and Woodruff, JJ.