Bond v. Pacheco

By the Court, Sawyer, J.: A judgment by default was entered in this action by the Clerk upon due service of summons. The prayer of the complaint was for a specific sum, and the summons specified the [532]aggregate amount demanded in the complaint. In entering judgment the Clerk, in addition to the specific sum demanded, included subsequently accruing interest, and the judgment provided for interest at the rate specified in the note in suit. The, judgment being by default was, therefore, for a larger sum than plaintiff was entitled to recover on the complaint and summons, under sections one hundred forty-seven and one hundred fifty of the Practice Act. Several terms of the Court having elapsed after the entry of the judgment without any steps having been taken by defendant to have it corrected, an execution was issued and placed in the hands of the Sheriff, and a portion of the money made. Subsequently, upon application made and heard at chambers, the Judge of the Court in which the judgment was entered made an order setting aside the “said execution issued upon said pretended judgment,” and perpetually staying its enforcement, also directing the Sheriff to restore to said defendant the moneys collected on the same. The plaintiff appeals from this order made in the case subsequent to judgment.

Jurisdiction of Judge at chambers.

It is claimed by appellants that the Judge had no jurisdiction at chambers to make said order, and in this we think he is right. If the authority to hear motions and make orders of this character at chambers exists, it must be by virtue of the twenty-fifth section of the Judiciary Act of 1863. That section makes it the duty of the District Judges to “ transact such business at their chambers as may be done out of Court.” It then provides for granting such writs and orders as are usually granted in the first instance on ex parte applications, and authorizes the hearing of motions for a discharge of such orders. It then provides for granting certain other writs, and hearing certain designated motions at chambers, but the motion and order in question cannot by any reasonable interpretation be brought within the provisions of the Act, and we know of no other provision giving the Judge at chambers jurisdiction in stich proceedings. It is properly a proceeding [533]