Cogswell v. Cole

21 Wend. 34

• Court: New York Supreme Court
• Decided: January 15, 1839
• Status: Published

Opinion

By the Court,

Bronson, J.

The execution issued immediately on the rendition of the. judgment, although Cogs-well was an inhabitant of the county of Yates, and had a family. 2 R. S. 249, § 134. This was irregular, and both Cole and the justice are trespassers, unless the execution was applied for in the manner prescribed by the 135th section : “ Application for such execution may be made either before or at the time of rendering the judgment; or, if reasonable notice be given to the: adverse party, of the intention to apply for such execution," such application may be made at. any time after the judgment shall have been rendered.” The defendants, in their pleas, have brought themselves plainly within the language of the statute; they aver that the application was made at the time of rendering the judgment. To this the plaintiff replies, that the justice took four days to render judgment, (§ 124) upon which both parties left the office, and the plaintiff had no notice of the intention to apply, nor of the application for an execution. This is no answer to the pleas, for the reason that when the application is made either before or at the time of rendering the judgment, no notice to the adverse party is required by the statute.

During the four days which the justice may take for consideration, the parties are only deemed in court for the purpose of receiving judgment,. 10 Wendell, 52L The plaintiff was not actually present when the judgment was rendered, and consequently had no opportunity of answering the application for an execution, ,by giving security. (§ 136.) Had the law-makers foreseen that such a case would arise, they would probably have provided for it; but we' cannot supply a casus omissus in the statute, without assuming powers that have been confided to another department of the government. 1 T. R. 52, per Buller, J. The replica: tians are insufficient.

Judgment for defendants.