Lynch v. Rome Gas Light Co.

Morgan, J. The final decree of a court of equity formerly took effect when it was made and declared by the court, and the record, when made up, was only evidence of the ■decree, and simply proved it, without adding any thing to its force or effect; except in those cases where the statute required it to be enrolled as preliminary to some further action which was to be taken upon the basis of the decree, and w'hich was only authorized after enrollment. And it was not even necessary to enroll it as a matter of evidence. (Bates v. Delevan, 5 Paige, 303, 4. Winans v. Dunham, 5 Wend. 47. Fort v. Burch, 6 Barb. 60.) In partition suits the final decree may be evidence for or against strangers; for it ope [593] rates to change or create a title. (2 Phillips’ Evidence, 823, note 583.) The former distinction between decrees in equity and judgments in actions at common law has not, in my opinion, been abolished by the code, but is inherent in the two systems. In cases at law there is no judgment pronounced, except by the record. There may be a verdict or an order for judgment, but the judgment itself is made up in the clerk's office. The prevailing party recovers a certain sum as damages or costs, or both, and then the judgment is docketed and the amount becomes a lien upon the real estate of the defendant in the county where the judgment is docketed. But the decree of a court of equity may never go upon the docket at all. It is only when a certain sum is directed to be paid that it would be proper to enter it upon the docket. The delay of the clerk in entering it in the judgment book will not affect its validity. It should also be enrolled with the pleadings; but it evidently takes effect from the time it is pubjished by the court. It is only when the decree provides for the recovery of money by one party against the other that it is required to be docketed in order to give it effect as a lien upon real estate, or to authorize further proceedings thereon. (2 R. S. 638, 5th ed. §§ 11, 12. 9 Barb. 500.) Without doubt, the codifiers undertook to assimilate proceedings in law and equity, by a formal declaration to that effect. (See preamble to Code of Procedure.) Tet, in the subsequent provisions of the code, the proceedings are separated in the modes of trial and by various other characteristics which clearly distinguish them as two separate systems. It is impossible to harmonize the proceedings throughout; and the most the codifiers have accomplished is, to make the declaration above mentioned, while they have carefully preserved a clear line of separation between them. The mode of administering relief in equity is not changed by the code; and the court now, as formerly, pronounces the judgment, [594] and with the same effect upon the rights of the parties. In my opinion, the plaintiff's rights were fixed and settled by theo final decree in partition, and not by the enrollment. A new trial should be granted. [Onondaga General Term, October 4, 1864. Bacon, J. concurred. Mullin, J. dissented. : New trial granted. Muttin, Morgan and Sacón, Justices.]