
    August G. Nanz, Pl’ff, v. Jesse Oakley, Def't.
    
      (Supreme Court, General Term, First Departmet,
    
    
      Filed June 12, 1891.)
    
    1. Evidence—Surrogate’s decree—Not sufficient evidence to sustain judgment on bond of administrator.
    An action upon an administrator’s bond cannot be sustained by merely offering in evidence a decree entered in the surrogate’s court against the administrator It is necessary to show by the record that the court has acquired jurisdiction of the parties in the manner prescribed by law.
    2. ” Execution—Issued before judgment docketed in county. @
    • An execution issued twenty-six days prior to the docketing of a judgment in the county to which it is issued is irregular, and confers no power upon the sheriff to execute it.
    3. Same—Code Civ. Pro.. § 1365.
    An execution which does not contain the recital that the judgment had been docketed in the county to which it was issued is fatally defective.
    Motion for new trial on exceptions ordered to be heard, in the first instance, at general term.
    
      David Thornton, for the motion; W. H. Mundy, opposed.
   Van Brunt, P. J.

—This action was brought to recover upon an administrator’s bond. It has been previously tried and the complaint dismissed; and upon appeal taken to the court of appeals the judgment was reversed and a new trial ordered; and upon such new trial the court directed a verdict in favor of the plaintiff.

Certain exceptions having been taken, they were ordered to be heard, in the first instance, at the general term.

The foundation of the action was a decree entered in the surgate's court against the administrator upon whose behalf the bond had been given in favor of the plaintiff, which decree had not been complied with. Upon the trial of the action such decree was offered in evidence without any proof of the proceedings showing that the surrogate had acquired jurisdiction to render such a decree.

Objection was taken that the decree was simply a postea'and that there was no jurisdiction shown for making the decree and no foundation for it. This objection was overruled and an exception taken.

We think that this was error. In order to make the adjudication of the surrogate’s court binding it was necessary to show by the record that the court had acquired j urisdiction of the parties in the manner prescribed by law. The simple production of a decree proves nothing. Where the objection is taken that the judgment roll must be produced, or that the proceedings which resulted in the decree must be produced, it is error to overrule such objection, because, as already stated, the record must show that the court has jurisdiction of the parties. In the case at bar there is nothing but a decree upon a final accounting. None of the proceedings are offered in evidence going to show that the surrogate had acquired jurisdiction either of the persons against whom he was adjudicating or of the subject matter. This was necessary, because if it appeared from the record that the proper proceedings had not been taken so as to confer jurisdiction upon the surrogate to render the decree which he assumed to render, of course the decree could not be admitted in evidence.

Another objection was taken to the admission of an execution against the property of the administrator who had been directed to pay over the money to the plaintiff’s assignor. It appeared that such execution had been issued twenty-six days prior to the docketing of the judgment in the county to which it was issued. This was clearly an irregularity and conferred no power upon the sheriff to execute the same. Neither could the requirements of the Code be complied with, because such execution could not truthfully contain the recital that the judgment had been docketed in the county to which the execution was issued.

Another execution • was offered in evidence which was subsequently issued. But that execution was fatally defective in not containing the recital required by the Code, that the judgment referred to had been docketed in the county to which the execution was issued.

The objections as to the defects of the assignment which forms the plaintiff’s title cannot be considered because they seem to Have been disposed of upon the prior appeal.

None of the other exceptions need consideration, in view of the fact that the exception to the admission of the surrogate’s decree, without proof of any other papers, is fatal to the verdict which has been rendered.

We are of opinion, therefore, that the exceptions should be sustained, the verdict set aside and a new trial ordered, with costs to defendant to abide event.

Daniels, J.,  