Suydam v. Hoyt

25 N.J.L. 230

• Court: Supreme Court of New Jersey
• Decided: November 15, 1855
• Status: Published

Opinion

The Chief Justice

delivered the opinion of the court.

To a declaration on a judgment rendered in the Supreme Court of the state of New York, the defendant pleaded, that there was no such record remaining in said court, and that the judgment declared upon had been removed by appeal to the general term of said Supreme Court, pursuant to the statutes of said state. The plain! iff replied, that the written undertaking required by the laws of that state to stay the proceedings on the judgment had not been filed by the defendant, and that proceedings on the judgment had not been stayed. To this replication there is a general demurrer.

It is unnecessary to consider the validity of the replication, as the defendant’s plea is radically defective. The court will look back through the pleadings to see where the first substantial error in pleading occurred, and render judgment accordingly.

Admitting the proceeding by appeal to the general term of the Supreme Court, under the laws of the state of New York, to be tantamount to a writ of error to another and higher tribunal, the plea is vicious.

The pendency of a writ of error does not prevent the bringing of an action upon the judgment, nor does it enable the defendant to plead truly nul tiel reeord.

It is in the discretion of the court in which the action upon the 'judgment is brought, pending a writ of error, to stay the proceedings or not. 3 Term R. 78 ; 5 Term R. 9; 6 Term R. 455 ; 5 Barn. and Ald. 903 ; 1 Arch. Per 220.

And if the conduct of the plaintiff in error appear to be vexatious, the court will suffer the action upon the judgment to proceed, notwithstanding error brought. 2 Term R. 18.

The matters set forth in the plea contain no ground of defence to the action, and judgment must therefore be for the plaintiff upon