
    Philip Diefenbach, Resp’t, v. Jacob Roch, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    Statute of limitations—Effect of filing a transcript of justice's COURT JUDGMENT IN COUNTY CLERK’S OFFICE—CODE ClV". PRO., § 382, SURD. 7, § 3017.
    The filing of a transcript of a justice’s court judgment in the county clerk’s office does not convert the judgment into one “ rendered ” by the county court for the purpose of taking an action upon such judgment out. of the six years statute of limitation. This in effect reverses Bpencerr v. Wait (2 How. Pr. [N. S.], 117); Baldwin v. Roberts (30 Hun, 163-165); Kincaid v. Richardson (9 Abb. N. C., 315).
    Appeal from a judgment of the general term, second department, affirming a judgment of the special term.
    
      Edward P. Wilder, for app’lt; Ira Leo Bamberger, for resp’t.
    
      
       Reversing 89 Hun, 657, mem.
      
    
   Earl, J.

Early in February, 1885, the plaintiff held against the defendant a judgment for $221.79, recovered in a justices’ court on the 27th day of May, 1875; and later in the same" month the defendant recovered a judgment against the plaintiff in the supreme court for $913.09. A transcript of plaintiff’s judgment was filed in the office of the clerk of the county of Kings on the 2d day of June, 1875, and the judgment was docketed in that office on that-day. The plaintiff commenced this action on the 28th day of February, 1885, to procure an adjudication that his judgment be set off against that of the defendant, and that the-defendant be required to receive from him the balance of his judgment, and to satisfy and discharge the same. The-defendant, alleged in his answer, among other things, that the plaintiff’s judgment was barred by the six years statute-of limitations; and the sole .question we deem it important, now to consider is, whether the plaintiff’s judgment, notwithstanding the filing of the transcript and the docketing-in the office of the county clerk, was barred in six years from the rendition thereof in the justices’ court. The contention of the plaintiff is that it became a judgment of the-county court to all intents and purposes, and that, therefore, the limitation claimed by the defendant was not ap-

It was provided, in the Revised Statutes, that a transcript of a justices’ judgment for above twenty-five dollars, exclusive of costs, could be filed and the judgment docketed in. the clerk’s office of the county, arid that the judgment from and after the filing and docketing by the clerk shall be alien on the real estate of the defendant within the county in the same manner, and with like effect as if such judgment had been rendered in the court of common pleas; and may in the same manner be discharged and cancelled.” 2 R. S., 247, §§ 127, 128. And it- was also provided that all actions ■on judgments rendered in any court, not being a court of record, should be commenced within six years next after the cause of action accrued. 2 R. S., 295, § 18. By section 63 of the old Code of Procedure, it was provided that where a judgment was recovered in a justices’ court, for any amount, a transcript thereof could be filed, and the same could be docketed in the county clerk’s office, and that from that time “ the judgment shall be a judgment of the county court,” but that no such judgmer» " for a sum less than twenty-five dollars, exclusive of costs, shall be a lien on or ■enforced against real property.” In section 90 it was provided that an action upon a judgment or decree of any court ■of the United States, or any state or territory within the United States, should be commenced within twenty years. 'Thus it is seen that some change was made by the Code in the provisions of the prior law It was no longer requisite that the justices’ judgment should be for twenty-five dollars, before a transcript could be filed and the judgment docketed; the six years’ limitation was abrogated, and the twenty years’ limitation was made applicable to all judgments whether of courts of record or not. Section 3017 of the Code of Civil Procedure provides that a transcript of any judgment rendered in a justices’ court for any amount may be filed in the county clerk’s office, and that “ thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly; except that an execution can be issued thereupon only by the county clerk, as prescribed in section 3043 of this act and that the judgment is not a lien upon and cannot be enforced against real property unless it is for twenty-five dollars or more, exclusive of costs; ” and by section 382 of the Code of Civil Procedure, it is provided as it was in the Revised Statutes, that an action upon a judgment or decree rendered in a court not of record, shall be commenced within six years, and that the cause of action in such a case is deemed to have accrued “ when final judgment was rendered.”

To sustain the contention of the plaintiff it must be held that his judgment was rendered within the meaning of the statute, in the county court when it was docketed there. Such a meaning of the word “rendered” is certainly not according to the common understanding. Ordinarily no one would understand that a judgment which had been recovered in a justices’ court and subsequently docketed in the county court was in any sense rendered in the county court, and there is no countenance for such a meaning to be found in any statute. The word “rendered,” as applied to judgments, is many times used in the Code and other statutes, and always in the sense of judgments given by judicial action. Judgments by default are no exception, as they are supposed to be rendered in the presence of the-court, and by its authority and direction. Section 3017 has this language:. “A justice of the peace who renders a. judgment except in an action to recover a chattel, must, upon the application of the party in whose favor the judgment was rendered, and payment of the fee therefor, deliver to him a transcript of the judgment. The county clerk of the county in which the judgment was rendered' must, upon the presentation of the transcript and payment, of the fees therefor, indorse thereupon the date of its receipt, file it in his office, and docket the judgment, as of the time of the receipt of the transcript,” for in section 382 prescribing the limitation for commencing an action upon a. judgment not of a court of record the language is, that, except in a decree heretofore rendered in a surrogate’s court “the cause of action in such a case is deemed to have accrued when final judgment was rendered.” In the Revised Statutes providing for the limitation of actions upon judgments in any court, not a court of record, the judgments are spoken of as judgments rendered in any court not a court of record; and in the same statutes in reference to procuring and filing transcripts and docketing judgments of justices’ courts, it is provided that on the demand of any person in whose favor the justice shall have rendered a judgment, if above twenty-five dollars the justice shall deliver a transcript of the same, and such a judgment after it is docketed shall be a lien upon real estate as if the judganent .“ had been rendered in the court of common pleas. ”

By chapter 470 of the Laws of 1847, section 39, it was provided that transcripts of judgments “rendered in this state or any court of the United States, duly certified by the clerk of such court, may be filed and docketed in the same manner as judgments rendered in the supreme court of this state.” There the word “rendered ” has plain reference to the original judgment, and clearly under that statute-the docketing of such a judgment in the county clerk’s office was not the rendition of the judgment in the supreme-court. The word “rendered” has the same meaning m section 1913 of the present Code, where provision is made in reference to actions upon judgments rendered in courts of record.

After a justice’s judgment has been docketed in the county clerk’s office, it becomes a mere statutory judgment of the county court. It is not in fact a judgment of that court. There has been no judicial action there, and no judgment has been in fact entered or rendered. It is simply to be deemed a judgment of that court. „ Such a judgment has not been twice rendered, once in the justices’’ court and once in the county court, and as it may be docketed in all the counties of the state, it certainly cannot be deemed to have been rendered in every county where it has been docketed.

Therefore, plaintiff’s judgment is a statutory judgment of the county court, but it was not rendered there. It was rendered in a justices’ court, and therefore an action upon it is barred within six years from the time of its rendition by the express language of section 382 of the Code. By this construction full force is given to all the language contained in subdivision seven of that section, and in sec. 3017, and what is believed to have been the intention of the law makers is given effect. If the six years limitation does not apply to such a judgment as this, then there is no limitation to an action upon such a judgment, as section 376 of the Code, providing that judgments shall be presumed to be paid and satisfied after the expiration of twenty years, applies only to judgments rendered in courts of record.

And then too, subdivision 7 of section 382, could be practically nullified in all cases as the judgments of justices and other courts not of record could even after the lapse of six years from their rendition be docketed in the county clerk’s office, and if they are to be regarded as judgments, then rendered in a court of record, there would be no statutory bar to an action upon them for twenty years more, and thus the judgments rendered in courts not of record would, as to the lapse of time, have a better position in the law than judgments rendered in actions commenced in courts of record, a result certainly not within the contemplation of the law-makers.

It cannot be doubted that this is an action upon plaintiff’s judgment. It is, in a certain sense, an action to enforce the judgment against the defendant by compelling him to allow the same in satisfaction pro tanto of his judgment. The judgment is the sole basis of the action, and in a real sense the action is to recover thereon.

We are therefore of opinion that the judgments of the general and special terms, should be reversed, and a new trial granted, costs to abide event.

All concur.  