Bennet v. Moody

The Superior Court of New York City

Bennet v. Moody

2 Hall 471

CourtThe Superior Court of New York City

DecidedOctober 15, 1829

StatusPublished

This text of 2 Hall 471 (Bennet v. Moody) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bennet v. Moody, 2 Hall 471 (N.Y. Super. Ct. 1829).

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Opinion

Oakley, J.

The defendant contends, that no action of debt will lie on a judgment obtained in the Marine Court. It is clearly otherwise. The case of Hale v. Angel, [20 J. R. 342,] shows that such an action may be maintained, even on a judgment in a Justice’s Court.

It is said, however, that the declaration in this case, does not show, that the Marine Court had jurisdiction, so as. to make its judgment effectual. The count states, that the plaintiff “ levied his certain plaint in said court, against the defendant, for a cause of action arising within the jurisdiction of said court, and such pro[473]*473ceedings were thereupon had, that judgment was obtained, &c. This would clearly be sufficient, as to those counts where the action is, technically speaking, commenced by plaint. [1 Saund. 92. n. 2.] But as to the Marine Court, it is said, that no such proceeding as that by plaint is known, but that the first process is, in all cases, to be by summons or warrant. Although the statute directs, that the first process shall be a summons or warrant, it does not necessarily exclude the idea, that such first process may be founded on a plaint. The Marine Court is a court of record, and its organization will admit, for aught I can see, like other courts of record, of the practice of filing a plaint, as the foundation of the first process against the defendant.

Were this otherwise, I should be inclined to hold, that the words, “ levied his certain plaint,” are to be taken, not in their technical sense, but as equivalent to the allegation, that the plaintiff in that court had commenced his suit against the defendant, or had impleaded the defendant, either of which would be sufficient, prima facie, to show that the court, rendering the judgment, had jurisdiction of the defendant’s person. The legal intendment in such a case would be, that the suit had been legally commenced. On the . whole, I think, there is no foundation for the objection.

Judgment for the plaintiffs on the demurrer.

[D. Graham, Jun., Att'y for the plff. E. Barnes, Att'y for the deft.]

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Oakley, J.

The defendant contends, that no action of debt will lie on a judgment obtained in the Marine Court. It is clearly otherwise. The case of Hale v. Angel, [20 J. R. 342,] shows that such an action may be maintained, even on a judgment in a Justice’s Court.

It is said, however, that the declaration in this case, does not show, that the Marine Court had jurisdiction, so as. to make its judgment effectual. The count states, that the plaintiff “ levied his certain plaint in said court, against the defendant, for a cause of action arising within the jurisdiction of said court, and such pro[473]*473ceedings were thereupon had, that judgment was obtained, &c. This would clearly be sufficient, as to those counts where the action is, technically speaking, commenced by plaint. [1 Saund. 92. n. 2.] But as to the Marine Court, it is said, that no such proceeding as that by plaint is known, but that the first process is, in all cases, to be by summons or warrant. Although the statute directs, that the first process shall be a summons or warrant, it does not necessarily exclude the idea, that such first process may be founded on a plaint. The Marine Court is a court of record, and its organization will admit, for aught I can see, like other courts of record, of the practice of filing a plaint, as the foundation of the first process against the defendant.

Were this otherwise, I should be inclined to hold, that the words, “ levied his certain plaint,” are to be taken, not in their technical sense, but as equivalent to the allegation, that the plaintiff in that court had commenced his suit against the defendant, or had impleaded the defendant, either of which would be sufficient, prima facie, to show that the court, rendering the judgment, had jurisdiction of the defendant’s person. The legal intendment in such a case would be, that the suit had been legally commenced. On the . whole, I think, there is no foundation for the objection.

Judgment for the plaintiffs on the demurrer.

[D. Graham, Jun., Att'y for the plff. E. Barnes, Att'y for the deft.]

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Bluebook (online)

2 Hall 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennet-v-moody-nysuperctnyc-1829.