Cotes v. Smith

By the court, Mason, J. This is an appeal from an order denying a motion - in behalf of Andrew R Smith, Minerva E. Wood, Louisa Rathbun and Calvin P. Smith, four of the defendants, to set aside the judgment entered in this action. The main ground relied upon by the appellants for setting aside the judgment in this case is, that the record has been altered or interfered with by the clerk, at the instance of [333] the parties, since the entry of the judgment. It is shown that the decision of the judge at special term was filed on the 5th of February, 1864, the judgment entered by the clerk on that day, and the roll signed and filed, with blanks left for the insertion of the costs. It appears - from the papers used on this motion, that the costs were not taxed until some days after the entry of the judgment, and when taxed, on notice to the appellants, were inserted by the clerk in the judgment. We are referred by the appellants’ counsel to section 9, title 5, chapter 7, of the third part of the B. S. (vol. 3, R. S. p. 723), which reads as follows : “ No process, pleading or record, shall be amended or impaired by the clerk or other officer of any court, or by any other person, without the order of such court, or-of some other court of competent authority.” The answer to this motion is, the Code of Procedure which has been passed, since the statute above cited, fully authorizes the clerk to do all he has done in this case. The only reasonable and fair construction of the Code is, that the judgment is to be entered before the costs are adjusted by the clerk, and the costs are to be adjusted by the clerk, and inserted in the record by him, after the judgment has been entered. This is apparent from the provisions of the Code itself. The 311th section says : “ The clerk shall insert in the entry of judgment, on the application of the prevailing party, upon five days notice to the other party, except when the attorneys reside in the same village or town, and then upon two days notice, the sum of the allowance for costs as provided by this Code,” &c. It will be seen that these costs are to be inserted by the clerk in the entry of judgment, clearly showing that the costs are to be inserted after the judgment has been entered. This view is strengthened by sections 264, 279, 280 and 281 of the-Code. By section 264, the clerk upon receiving a verdict is required to enter the judgment in conformity with the verdict. By sections 279 and 280, he is required to' keep [334] a judgment book and enter the judgment therein, and by section 281, unless the party or his attorney shall furnish a judgment roll, the clerk immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll: 1. In case the complaint be not answered by any defendant, the summons and complaint, or copies thereof, proof of service and that no answer has been received, the report if any, and a copy of the judgment. 2. In all other cases the summons, pleadings, or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment. This is to be done immediately on entering the judgment, clearly showing that the clerk is- not to wait five days, or any other time for the adjustment of the costs,' before entering the judgment and making up the judgment roll. This court so held in the case of Stimson agt. Huggins- (16 Barb. R. 658 ; 7 How. Pr. R. 84), and such is the opinion of the superior court of the city of New York in Gilmartin. agt. Smith (4 Sand. R. 686), where the court says : “ If the proceedings are conducted according to the Code, the judgment is to be entered ■ before the costs are adjusted.” The practice prescribed by the Code, contemplates that the judgment is entered by the clerk, leaving blanks, as was done in this case, for the costs to be inserted by him when they are adjusted. (16 Barb. 658; 7 How. 86; 5 Bosw. 686.) The adjustment of the costs, and inserting the same in the record, is but a means of completing the judgment (1 Abb. Pr. R. 120; 1 Code R. N. S. 119), and is not amending or impairing the record within the meaning of the 9th section of title 5, chapter 7, part 3, of the Revised Statutes (3 R. S. bth ed. 723), and if it were it is fully authorized by the subsequent enactments of the Code. As the judgment stands, the order allowing $100 to the [335] guardian, is a matter in which these appellants have not the least interest, as it is special, and is to be paid out of a fund in which they have no interest. It is only a question between George L. and his guardian, and these appellants are in no manner aggrieved by it. If there were any irregularity in inserting it in the judgment, they cannot, therefore, require it to be stricken out, and besides, they cannot be heard to complain of this after allowing more than a year to elapse. But assuming that these costs were irregularly taxed and inserted in the judgment, this cannot affect the validity of the judgment. (16 Barb. 658 ; 4 How. R. 414 ; 5 Id. '234; 4 Sandf. S. C. R. 684.) The law is well settled that this court cannot set aside a judgment to allow a party to appeal, and thereby indirectly do what cannot be done directly. (27 How. R. 136; 11 N. Y. R. 275; 16 How. R. 385; 22 N. Y. R. 319.) If I am right in the views above expressed, it follows that the order appealed from should be affirmed, with $10 costs. Decision accordingly.