Wemple v. Johnson
New York Supreme Court
Error from the Montgomery common pleas. On the 20th May, 1833, Wemple commenced a suit in a justice’s court against Johnson, and on the 29th May declared in debt on a justice’s judgment, rendered in his favor against the defendant on the 10th May, 1833, for $25 damages, and $2,63 costs.
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Error from the Montgomery common pleas. On the 20th May, 1833, Wemple commenced a suit in a justice’s court against Johnson, and on the 29th May declared in debt on a justice’s judgment, rendered in his favor against the defendant on the 10th May, 1833, for $25 damages, and $2,63 costs. The defendant pleaded the general issue, and gave notice that, on the trial of the cause, he would prove that on the 22d May, 1833,a certiorari was allowed by the first judge of Montgomery common pleas, removing the judgment whereon the action was brought into the common pleas; and that such certiorari was…
1Opinion of the Court
By the Court,
Nelson, J.
A writ of error pending may be pleaded in abatement to an action of debt on a judgment, if it be stated that it was brought prior to the commencement of the suit on the judgment, and that the requisite steps have been taken to render it a supersedeas to an execution, 2 Johns. Cas. 312; or the court will stay the proceedings on a proper application, 1 Archb. Pr. 242. The action of debt on judgment is usually unnecessary and vexatious, and is and should be discouraged by the courts. 1 Ld. Raym. 47.
The service of a certiorari and of the affidavit upon which it is allowed,…
2Cases cited2 opinions
- Jenkins v. PepoonNew York Supreme Court · 1801
- Kline v. HustedNew York Supreme Court · 1805