Wemple v. Johnson

13 Wend. 515

• Court: New York Supreme Court
• Decided: May 15, 1835
• Status: Published

Opinion

By the Court,

Nelson, J.

A writ of error pending may be pleaded in abatement to an action of debt on a judgment, if it be stated that it was brought prior to the commencement of the suit on the judgment, and that the requisite steps have been taken to render it a supersedeas to an execution, 2 Johns. Cas. 312; or the court will stay the proceedings on a proper application, 1 Archb. Pr. 242. The action of debt on judgment is usually unnecessary and vexatious, and is and should be discouraged by the courts. 1 Ld. Raym. 47.

The service of a certiorari and of the affidavit upon which it is allowed, and of the bond required by the statute, upon the justice rendering the judgment, stays the execution, if not already issued ; and, if issued, the certificate of the justice suspends the execution of it in the hands of the constable, 2 R. S. 256, § 176. The first clause of this section is merely declaratory of the common law effect of the writ, 1 Bacon’s Abr. 570, G., as, after the cer¿¿o?-ar¿, nothing remainedbefore the justice authorizing the execution. It seems to be set-tied that a plea in abatement must aver that the writ of error was brought before the commencement of the action on the judgment. Tj¡je strict application of this rule would always defeat the plea m a-ease like this, as the suit may be commenced as soon as judgment is rendered. To give effect, therefore, to the above provisions óf the statute in reference to the certiorari, and inasmuch as the summary remedy of staying execution is inapplicable to justices’ courts, we feel ourselves bound to say, that the issuing of a certiorari, in pursuance of the provisions of the act, constitutes a good defence to the action. The short period within which the certiorari must be sued out, and the security required to be given for debt and costs, guard the rights of the defendant in error, and remove. every pretence for a new suit on the judgment.

The general rule undoubtedly is, that a defence of this nature must be pleaded in abatement; but considering the great informality of pleadings in justices’ courts, and the uniform indulgence extended to them, we feel ourselves warranted in holding the notice accompanying the general issue in this case sufficient. The pleadings before justices may be either verbal or written, 2 R. S. 234, § 48. By allowing them to be verbal it is obvious that the legislature intended to dispense with all form, except what was necessary to advise the opposite party of the nature of the matters relied on. It was not contemplated that the justice should attend to the technicality of special pleading: indeed the statute only requires him to notice the substance of the pleadings, when put in verbally. It may be added that special pleadings injustices’ courts are discountenanced, as is strikingly illustrated in the case of Kline v. Husted 3 Caines, 275. Besides, the plaintiff in this case should have objected to the form of the pleadings at the time of the joining of the issue.

Judgment affirmed.