Court of Common Pleas, and thereafter in the Supreme Court.

Execution was issued upon the judgment docketed in this court under which property of the relator was levied upon.

The relator asks to be afforded relief upon the ground that the judgment in the District Court was entered against him without his interposing any defence, because he had been led to believe that the action against him had been suspended or determined.

It appears that in June, 1909, a summons was issued against Louis Laval in an action brought in the said District Court by Charles Lacombe, and that Laval placed his defence in the hands of an attorney; that this action was continued by adjournments from time to time until December 1st, 1909, when, in the absence of Laval, a judgment was entered against him. The defendant claims that he was misled into the belief that the claim had been heard and decided in an action brought in the State of New York by one Charles Lacombe against Charles Laval, as administrator of Charles Laval, deceased, to recover on a bond which seems to have been given by Charles Laval conditioned for the payment of a debt of Louis Laval. Louis Laval, the defendant, was noticed to come in and aid the defence in the New York action.

Louis Laval appeared in that city as a witness, and he thought the new suit involved the same matter as the New Jersey suit, and so paid no further attention to the action pending against him in this state, and was not aware of the judgment that had been entered in the New Jersey action until execution was levied upon his property under that judgment.

This judgment having been docketed in the Hudson County Court of Common Pleas, and that docketed judgment being afterward docketed in the Supreme Court, application is now made to have the judgment opened and a new trial granted.

The provision for docketing a judgment of the District Court in the Court of Common Pleas for that county is to be found in sections 168-177, inclusive, of the District Court act. Pamph. L. 1898, p. 618. Section 172 of that act pro

Lacombe v. Laval.

*

81 N. J. L.

vides that "such judgment shall *operate as a judgment obtained in a suit originally commenced in the said court, and satisfaction thereof may be entered in the same and upon the same evidence as is now provided by law in the case of judgment rendered in the Court of Common Pleas, and execution may issue therein out of such Court of Common Pleas which shall be of the same effect as to the property of the judgment debtor, either personal or real, as if issued on the judgment originally obtained in such Court of Common Pleas upon the suit commenced therein."

By section 173, as amended by the act of 1908, page 97, it is provided that "no judgment shall be allowed to be docketed after the granting of a new trial, an appeal or certiorari. In case the judgment shall have been docketed before the granting of a new trial, an appeal or certiorari, no execution shall issue therein out of the Court of Common Pleas pending the final determination of the said proceedings." It is provided that "in case execution has issued in the Common Pleas, in case a new trial is granted by the District Court, no further proceedings shall be taken on such execution, pending the determination thereof."

The provision for docketing a judgment of the Court of Common Pleas in the Supreme Court is to be found in Gen. Stat., p. 1812. Sections 8, 9 and 10 of that act state what the docketing record shall contain, and what the clerk of the Court of Common Pleas and the clerk of the Supreme Court shall do in respect to it. Section 11 provides that "such judgment shall, from the time of such docketing in the Supreme Court, operate as a judgment obtained in the Supreme Court, and satisfaction thereof may be entered on the margin of the docketing, upon the same evidence and in the same manner as is now provided by law in case of judgment rendered in the Supreme Court." Section 12 provides for issuing executions out of the Supreme Court after docketing, and for controlling executions issued out of the inferior court before docketing. Section 14 provides that "if the judgment of the Court of Common Pleas shall be removed by writ of error to the Supreme Court, before or after it is docketed, execution

shall be stayed in the Supreme Court in the same manner as it would be in the Court of Common Pleas."

The language of section 173 of the District Court act displays the legislative understanding that a judgment of the District Court, by being docketed in the Court of Common Pleas, does not cease to be under the control of the District Court.

The District Court can grant a new trial after its judgment is docketed. Pamph. L. 1908, p. 98; Baisley v. Universal Drier Co., 32 Vroom 459.

The statutory provision for a new trial in the District Court impliedly excludes the view that the Court of Common Pleas has such power. While a judgment docketed in the Court of Common Pleas may be attacked in that court for an irregularity in such docketing (Roller v. Roller, 17 Vroom 511), yet, where the docketing is regular, proceedings to set aside the judgment must be taken in the court in which the judgment was rendered, or taken by proceedings which are addressed to that court.

It appears that the proceedings for docketing judgments in the District Court are legislative transcripts of the proceedings prescribed for docketing judgments of Courts for the Trial of Small Causes. Gen. Stat., p. 1879, $$ 70, 77.

In Davis v. Osborne, 22 Vroom 101, it was held that any order to review a judgment rendered in a justice's court, which judgment had been docketed in a Court of Common Pleas, upon the ground of illegality in the proceedings of the trial court anterior to the judgment, the writ of certiorari must go to the justice's court, and not to the Court of Common Pleas.

Whether, if the docketed judgment is void for any reason. such, for instance, as a failure to bring in the defendant in the trial court, such judgment could be struck from the record as a docketed judgment, need not be decided.

In the present case, process was served upon the defendant, and the judgment in respect to the procedure was entirely regular.

The present application is addressed to the equitable power

N. Y., S. & W. R. R. Co. v. Paterson.

81 N. J. L.

of the Supreme Court to open the judgment and grant the defendant a new trial because of his mistake respecting the effect of the New York action in terminating the present action.

Such an application could not have been successfully addressed to the Court of Common Pleas when the judgment was a docketed judgment in that court. Nor can it be recognized in this court since the judgment has been docketed here. The judgment became a judgment of the Court of Common Pleas for the purpose of securing more efficient means of satisfying the judgment debt. When once docketed in the Common Pleas, it could be docketed in this court for the same purpose. But in neither case did the docketing operate as a writ by which the judgment was transferred from the trial court to a higher court for the purpose of reviewing trial errors, or for the purpose of transferring the power over the judgment by the trial court to the superior court save in the matter of execution and the entry of satisfaction of the judgment debt.

For this reason we are of the opinion that the application must be refused.

NEW YORK. SUSQUEHANNA AND WESTERN RAILROAD COMPANY. PLAINTIFF-APPELLANT, v. THE MAYOR AND ALDERMEN OF THE CITY OF PATERSON, DEFENDANTS-RESPONDENTS.

Argued November 9, 1908 Decided June 15. 1911.

Where a contract purporting to be made by a city in respect of a matter concerning which the city has the power to contract. is signed by the mayor and sealed with the municipal seal, the contract will be prima facie presumed to be within the municipal authority. This presumption will be rebutted only when it appears that no authority was given to the mayor to sign and affix the seal to such contract by any department of the city government upon which rested the authority to authorize the contract.

52 Vroom.

N. Y., S. & W. R. R. Co. v. Paterson.

On appeal from the Paterson District Court.

Before Justices REED, BERGEN and MINTURN.

For the plaintiff-appellant, Collins & Corbin.

For the defendant-respondent, Edward F. Merrey.

The opinion of the court was delivered by

REED, J. The action was upon two contracts in the name of the city of Paterson of the one part and the New York. Susquehanna and Western Railroad Company of the other part.

In each of these contracts the railroad company gave a license to the city of Paterson to build a sewer under the route of the railroad company.

The contracts provided that the railroad company should have the option to do all the work necessary to support its tracks during the construction of the sewer by the city, and contracted that the cost of the work so done by the railroad company should be paid to it by the city.

The railroad company did such work, the amount and valuation of which work was proven at the trial, and found by the court to be reasonable. Subsequently, the court, before whom the case was tried without a jury, found a judgment for the defendant, and from this judgment the appeal is taken.

The plaintiff offered in evidence two contracts purporting to be the contracts of the city, signed by the mayor of the city and attested by the city clerk. The validity of these contracts is attacked upon the ground that the mayor had no authority to execute them on behalf of the city.

If the contracts related to a matter concerning which any department of the city government had a right to contract, there arises prima facie presumption that the signatures of the mayor, and the seals of the city, were rightly attached to these contracts.

Proof of the performance of the terms of the contracts by