Reid v. Defendorf ( 1895 )

CULLEN, J.

This is an appeal from an order made by the county court of Rockland county declaring the service of defendant’s notice of appeal from a judgment rendered by a justice of the peace valid and made in time. The cause was tried before the justice on February 1st, and it was stipulated that the parties should have till February 7th to file .briefs, and the justice four days thereafter to decide the cause. The justice, finding himself in poor health, decided the case on February 6th, before the receipt of the briefs of the parties; entered the judgment in his docket; and placed the docket book in his safe. He then left the state on a visit, and directed his nephew, in whose charge he left his affairs, to show his books to persons making inquiries. No notice was given to the defendant of the decision of the cause. He called several times at the justice’s office, but found it closed, the nephew only attending the office at times. The justice returned on February 28th. The defendant learned of the judgment against him on March 1st, and on the 17th of that month served his notice of appeal and filed his bonds. The plaintiff’s attorneys returned the notice of appeal as served too late. Thereupon the defendant applied for the order appealed from.

The Code allows 20 days after the entry of a judgment in the justice’s docket within which a party may take an appeal (section 3046). Ooncededly, more than that time elapsed from the entry of the judgment by the justice till the defendant took the first step towards an appeal. If the writing by the justice in his book constituted a perfected entry of judgment, then the defendant has lost his right to appeal. But we think the law is otherwise. It is not necessary for the successful party in a justice’s court to give any notice to his adversary to limit the time to appeal. The parties must examine the justice’s record, and discover for themselves the decision of the court. But, of course, for this purpose, it is necessary that the justice’s docket should be accessible and open for inspection; and the Code has enacted express directions in this regard. By section 3144, when removing from a town, the justice must deliver his docket book to the clerk of the town. By section 3141, a justice’s docket must be kept open by him during the hours the sheriff’s office is required by law to be open, for search and examination. When the law provides that a judgment be entered in a docket book, it means a docket book to be kept open as prescribed by law. Both sections of the Code must be read together. As long as the docket book was inaccessible to the party, the judgment or decision might as well have only existed in the judge’s mind. It may be doubted whether there was a legal judgment in this case until the docket book was opened to the public, but in no view should the time to appeal commence to run until that time.

The order appealed from should be affirmed, with $10 costs and disbursements.

DYKMAN, J., concurs.