
    W. H. Rich, App’lt, v. Homer C. Markham, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 26, 1895.)
    
    Justice of the peace—Judgment—Time.
    Where a justice, within four days after the trial of an action without a jury, enters on his minutes, “Judgment is hereby rendered in favor of defendant, and against plaintiff, for $40.66 damages, besides costs of an action,” but did not figure up the costs until after the four days had expired, such judgment is valid as to the damages awarded, hut is void as to the costs.
    Appeal from a judgment of the county court, affirming a judgment of the justice court, and adjudging that the said judgment, so far as the cost therein is concerned, be, and the same hereby is, reversed and held for naught.
    Merrell, Ryel & Merrell, for app’lt; O. S. Mereness, for resp’t.
   HARDIN, P. J.

It is contended by the appellant “that the justice never rendered any judgment until the 19th of April, 1893, and after the lapse of the four days after final submission, and after the cause had passed from his jurisdiction.” We think the facts stated in the return and amended return of the justice are -opposed to this contention of the appellant. The cause was tried' on the 14th of April, 1893, and submitted to the justice for decision; and, inasmuch as he was entitled to four days, the last day for the rendition of a judgment was the 18th day of April, 1893. On that day he made an entry as follows:

“Judgment is hereby rendered in favor of defendant, and against plaintiff, for $40.66 damages, besides costs of the action.

. “W. H. EGGLETON,. J. P.”

In the amended return the justice certifies, viz.:

“On April 18, 1893, I determined that the defendant was entitled to recover damages against the plaintiff to the amount of $40.66, and so entered the same on my docket and on the minutes of the trial kept by me, besides the costs of the action; and on the same date, to wit, April 18, 1893, I entered the items of costs which were to go in the judgment, as follows : * * * The item for serving summons was first entered on the docket among the items of cost, April 19, 1893. I left the amount of costs unfinished, in order to obtain from plaintiff’s counsel the amount of witness and subpoena fees on the part of plaintiff, in order to include them,in the judgment, being of the impression that they should be included in the judgment; and, not obtaining the information desired from plaintiff's counsel in reference to said witness and subpoena fees, I thereupon, and on the 19th day of April-, 1893, finished the item for filing papers by insering twenty-four as the number of papers filed, and $1.20 as the total for filing papers, and also at the same time entered among the items of cost the items for serving summons, $3.25, and immediately footed up the costs, and arrived at the sum of $7.95 as the costs of the action included in the judgment, and arrived at the sum of $48.61 as the total amount of the judgment against the plaintiff.”

When the justice, on the 18th, rendered a decision upon the merits, and made his entry of judgment for the amount of damages, a valid judgment was rendered against the plaintiff, and it was beyond the power of the justice to destroy the same by adding costs thereto on the following day. We think the facts in relation to the acts of the justice bring the case within the rule laid down in Dauchy v. Brown, 41 Barb. 555. In that case it was held that certain alterations did not make the judgment void ; “ that, being made after the time limited by statute for the justice to enter judgment and enter it in his docket, they were clearly void acts, as much as if they had been done by a stranger, and, being void, they could not affect the judgment.” We are entirely satisfied with the opinion of the court delivered by James 0. Smith, J., and we think the authorities cited in the opinion fully sustain the conclusion reached.

Appellant calls our attention to Putnam v. Van Allen, 46 Hun, 492; 11 St. Rep. 855. We think that case differs from the one before us. In that case the trial was before a jury, on October 1, 1885. In that case the justice did not write “Judgment” opposite the total items; and, upon the facts disclosed, it was held that his acts on the 5th of October were without authority, and that the judgment attempted to be entered on that day was clearly void, “ as having been rendered, not forthwith after the verdict, * * * at a time when the justice had no right to enter a judgment.” In the course of the opinion delivered by WILLIAMS, J., he said:

“This judgment appealed from was clearly void as having been rendered not forthwith after the verdict, but four days later, at a time when the justice had no right to enter any judgment”

And that judge further said, in the course of his opinion, “ that no judgment was rendered or entered October 1, 1885.” The case, therefore, differs essentially from the one in hand.

The principal question involved in this appeal is carefully discussed in the opinion of the learned county judge, and we are satisfied with the views he there expresses; and for the reasons therein stated, as well as upon the views we have already expressed, we are of the opinion that the action of the county court was proper.

Judgment of the county court of Lewis county affirmed, with costs. All concur.

The opinion of Judge Turner, in the county court, is as follows : ' '

The issues in this action were fairly tried in 'the court below, and its conclusions thereon should not be disturbed. If, as the appellant insists, the judgment be void, his right to bring this appeal cannot be question. Striker v. Mott, 6 Wend. 465; Watson v. Davis, 19 id. 371; McMahon v. Rauhr, 47 N. Y. 67-72; Gillingham v. Jenkins, 40 Hun, 594. The action was tried before the court April 14,1893, and on the 18th day of April, 1893, the justice made this enty on his minutes:

“April 18, ’92. Judgment is hereby rendered in favor defendant and against plaintiff for $40.66 damages, besides costs of the action. W. H. EGGLETON, J. P.”

It is quite evident that the justice inadvertently wrote “April 18, ’92,” for “April 18, 1893,” the proper date; hence the error did not prejudice either party to-this action.

It appears from the answers of the justice to the interrogatories of plaintiff’s counsel in making an amended return herein that, on the 18th day of April (the last day on which he could render judgment), he figured up and determined the amount of costs in the action, except the items of serving the' summons and for filing papers, and that he did not determine the precise amount of the whole costs until the morning of the 19th of April, 1893, but that all the costs except the two items for serving the summons and for filing papers were set down and entered on the 18tli of that month. It also appears that he did not add up the entire costs until the morning of the 19th of April, after he had determined the amounts for serving the summons'and for filing papers. The time for a justice to render and enter a judgment in an action tried before him without a jury is limited by statute to four days after the trial is finished and the case submitted. Code Civ. Proc. § 3015. This was also the rule before the adoption of the Code, 2 Rev. St. p 247, § 124. The judicial power of the magistrate being thus limited to the four days, any subsequent act of his in attempting to render,a judgment, as well as such judgment itself, would be coram non judice, and of itself wholly void. Gillingham v. Jenkins, supra. The act of the justice in determining the amout of damages and the costs therein is judicial, and not ministerial, and cannot be postponed until after the expiration of the statutory time of four days. He may, however, make the entry in his docket book after the expiration of the four days, as that is a ministerial, and not a judicial act. In legal parlance, a judgment is the conclusion of law upon facts found, or admitted by the parties, or upon'their default in the course of the suit; or to define it more precisely, as expressed by Blackstone and other legal writers, it is “ the decision or sentence of law, given by a court of justice or other competent tribunal, as the, result of proceedings instituted therein for the redress of an injury.” 3 Bl. Comm. 895. “ Where a verdict, or the decision of the justice upon a trial with or without a jury, is rendered in favor of either party, the justice must render judgment against the adverse party in conformity thereto, with costs, except as is otherwise specially prescribed by law.” Code Civ. Proc. § 3014,

It appears from the return and amended return herein that the justice did, on the 18th of April, decide the case, and enter upon liis minutes that judgment was rendered in favor of defendant, and against plaintiff, for $40.66 damages, besides the costs of the action; and that on the same day he entered various items of costs, not adding them up, however, which amounted in the aggregate to the sum of $3.50; and that on the next day, the 19th, he entered the figures for serving the summons and filing papers in the list of other items of costs, and added up and set down in the entry of costs the total or aggregate of all those items. When the justice rendered his decision, and made the entry of judgment on the 18th, the case was closed judicially, so far as he was concerned, and he had no authority or power to alter, add to, or subtract from the same. Dauchy v. Brown, 41 Barb. 555. The respondent contends that the act of the justice on the 19th of April, wherein he determined and set down in the items of costs the fees for serving, the summons and for filing papers, and then added up the total of costs, was so immaterial and slight that it should be disregarded as falling within the scope and intentions of section 3063 of Civil Procedure. This contention cannot prevail as to the acts committed on the 19th, for the act of determining the items and amount of costs was judicial, and, except by consent of the parties, could not be performed on that day. It was not a technical error or defect, but one jurisdictional with the magistrate who did the act, and cannot be sustained in law. Silvern. App. § 589. Nevertheless, it seems to me to be clearly established that .an unauthorized act on the 19th cannot and should not invalidate a proper and completed judicial act done on the 18th of April; hence that the judgment which he rendered on the last-named day in defendant’s favor, and against the plaintiff, for damages, as by him entered, is valid, .and should not be disturbed, Had he added up the costs he determined and entered on that day (the 18th), I think no question could well be raised as to the regularity or validity of the same; but, as it was, he did not do that until the day following, when his power to do so had lapsed.

If I am correct in these views, this judgment should be affirmed as to the amount of damages recovered, but not as to the costs, for there was no valid judgment determined or entered on the 18th, as to the amount of costs which went into the judgment. The judgment herein for $40.66 damages should be affirmed, and reversed as to the costs, the sum of $7.95, and costs upon this appeal allowed to respondent for the' sum of $10 only. Appellant, who paid the $7.95 costs, has an adequate remedy to recover back the same.  