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note, 315, 319
Non-resident, what is.......
to county clerk, of proceedings to foreclose lien, object, requisites,
Officer de facto and de jure, distinction between..
of foreign corporation, action by
220, 228, 296
Parol proof, when not admissible to prove deed defeasible. .
.343, note, 344
Recapture--when lawful out of the State
Receiver, liability of, for costs...
.213, 217, note.
Scaled proposals, defect of form in
in foreclosure, on payment of interest .
15, 329, note, 336, note, 340, 343, 344, note.
Waiver-appearance is not, of irregularity in complaint..
THE AMERICAN EXCHANGE BANK Q. SMITH.
New York Superior Court; General Term, December, 1857.
JUDGMENT ENTERED BY CLERK ON FAILURE TO ANSWER.—RE
QUISITES OF JUDGMENT-ROLL.
In an action to recover money only, where the complaint is not verified, and states
as a cause of action a promissory note made by the defendant, and judgment is entered upon a failure of the defendant to answer, it is not essential to the regularity of the judgment that the judgment-roll should show on its face that the note was produced to the clerk, and that he assessed the amount due to the plaintiff thereon. The Code does not, in terms, or by fair construction, require it. It was not re
quired by the practice prior to the Code. As the clerk, in such cases, must enter the judgment for the amount he has assessed, the judgment-roll is evidence that he did his duty in respect to assessing the amount due.
This action comes before the general term on an appeal by the defendant from an order made by Mr. Justice Hoffman, dated October 28, 1857, denying a motion made by the defendant on the judgment-roll, to vacate, for irregularity, a judgment entered on the 16th of said October for $3944.45 and costs.
The grounds of irregularity specified in the notice of motion, are,
1st. It does not appear by the record that the note, described VOL. VI-1
The American Exchange Bank a. Smith.
in the complaint as the cause of action, was produced to the clerk of the court, or that he assessed the damages thereon.
2d. It does not appear by the record that the defendant served any offer in writing that the plaintiff might enter judgment for any sum; nor that any offer, if served, was accepted within ten days thereafter, or at any other time.
3d. That there is no authority in the Code, or in any statute of this State, for the entry of such a judgment, and the same is void for want of jurisdiction.
The judgment-roll contains a summons dated December 14, 1845, stating that the plaintiff would take judgment for $3500.75, with interest from December 12, 1855. Also an unverified complaint, on a note dated June 9, 1855, made by the defendant, payable to the order of Dexter C. Force, six months from its date, for $3500. The complaint also states the indorsement of the note by the payee to Claflin, Mellen & Co., and by them to the plaintiffs, the due protesting of the note when due, and notice thereof to the payee, and that it is wholly unpaid; and prays judgment for $3500 and interest from the maturity of the note, and also for seventy-five cents for protesting it.
The roll also contains a paper writing containing the title of the action, and the words following, viz. :
“I hereby consent to, and do hereby withdraw the answer put in by me in this case, and consent that judgment be taken by the plaintiff against me for the sum demanded in the complaint, with costs.
CHARLES H. Smith, “ September 1, 1856." The judgment is in these words, viz. :
“Superior Court, City of New York. The American Exchange Bank, plaintiff,
against Charles H. Smith, defendant. Judgment,
185 “The summons, with a copy of the complaint in this action, having been personally served on Charles H. Smith, the defendant, more than twenty days previous to this date, exclusive of the day of service, and the answer to the complaint having been
The American Exchange Bank a. Smith.
withdrawn: Now, on motion of Peet & Nichols, plaintiff's attorneys, it is hereby adjudged that the American Exchange Bank, the plaintiff, recover of Charles H. Smith, the defendant, the sum of three thousand nine hundred and thirty-two dollars and fifty cents, with eleven dollars and ninety-five cents costs and disbursements, amounting in the whole to three thousand nine hundred and forty-four dollars and forty-five cents.
GEORGE T. MAXWELL, Clerk.”
To this is annexed a paper with the heading, “Statement for judgment,” and under that is written thus :4 Amount claimed in summons,
431.75 Protest fees,
3932.50" This is followed by items of cost, which, in the aggregate, are
To this is added an affidavit of one of the plaintiff's attorneys that no notice of appearance, answer, or demurrer, or copy thereof, has been received in said action, and that the disbursements charged have been, or may be, necessarily made. That affidavit is sworn to before the clerk, and the roll was filed September 18, 1857.
C. Bainbridge Smith, for the appellant.
BY THE COURT.*-BOSWORTH, J.-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
• Present, Duer, C. J., Bosworth, Slosson, Hoffman, and Woodruff, JJ.