(dissenting):
This is not an action-upon the judgment. If it were, as the court which rendered it was of special jurisdiction, an averment either of the facts conferring jurisdiction, or that the judgment was duly given, would, undoubtedly, have been requisite. It is simply a proceeding to compel the clerk of the court that gave the judgment to perform the ministerial act of issuing execution thereupon, as he is expressly commanded to do by statute. In my judgment the alternative writ need not, in such a proceeding, set forth either the special facts which gave the inferior court jurisdiction ; or, as authorized by section 532 of the Code of Civil Procedure, that the judgment was duly given. The inferior court here assumed jurisdiction, took cognizance of the action, and gave the relator judgment. It thus presmnptively determined in an action in which it had jurisdiction of *418the person of the plaintiff therein (King v. Poole, 36 Barb. 246) that it was authorized to grant the judgment that it gave. (State v. Soott, 1 Bailey [S. C.], 294; Clary v. Hoagland, 6 Cal. 685.) As to that plaintiff its decision was binding. The decision of any inferior court in favor of its own jurisdiction is certainly binding prima facie upon the magistrate who made it, as between himself and the person in whose favor it was given. If such a court, after thus assuming and exercising jurisdiction, discovers its error in that respect, it must, when further moved by the suitor in whose favor it has determined otherwise, point out its error. That burden at least rests upon it. After determining that he has jurisdiction, and acting upon that determination, the magistrate cannot arbitrarily refuse to complete what he has begun; and when brought into court upon mandamus, say to the relator — for that, in effect, is what he does say if he demurs to the alternative writ — “ Show me my authority for doing what I did.” The relator may well answer, “ I have shown it, prima facie at least as between you and me, when I allege your own judicial action in my favor. If that action was without jurisdiction make a return to that effect showing how, and the question you raise can then be determined upon by demurrér or traverse.”
Why is this not a reasonable view of where the burthen properly rests ? The contention that it rests upon the relator is based upon the notion that, because he recites in his writ that the court gave him judgment, that recital must be treated as “ pleading a judgment of a court of special jurisdiction” within the contemplation of section 532 of the Code. The respondent’s mistake is just there. The judgment is not directly in issue. The importance of this consideration was adverted to in Jackson v. Jones (9 Cow. 182). It was there held that, where title to land was obtained upon a sale under execution on a justice’s judgment, the transcript whereof had been filed in the county clerk’s office, it was not necessary in ejectment to show the facts which gave the justice jurisdiction. Upon this point Sutherland, J., said : “ The judgments themselves are not directly in issue. The defendant is a stranger to them. They are drawn in question collaterally. They are, as between these parties, to be considered as judgments of the Common Pleas and as valid and regular wntil impeached.” This rule was reaffirmedyn Jackson v. Tuttle *419(9 Cow. 233), and followed in Dickinson v. Smith (25 Barb. 105). In the latter case Johnson, P. J., said that the transcript was “prima, facie evidence that such justice had jurisdiction to render the judgment.” This was because the statute itself gave the lien upon the filing of the transcript. The “ transcript,” said the court in Jackson v. Tuttle (supra), “ it is conceded, is an authority to the clerk to issue an execution. It must, therefore, be evidence of a judgment having been rendered, for nothing but a judgment can warrant an execution.” It would seem that if the burthen in such a case is imposed upon the defendant to impeach the justice’s judgment, the same burthen should with greater reason be imposed upon the magistrate himself who gave the judgment, when that officer refuses to issue an execution thereon. Why, indeed, should not the ordinary presumption ■of the regularity of official action be invoked in such a case against the officer himself ? Not only is the judgment here not directly in issue, but it is not really the gravamen of the writ. The gravamen is the refusal to issue process thereon. The judgment is but the .antecedent fact upon which the refusal operates. The principle would be the same had the magistrate set the case down for hearing, and on the day fixed refused .the.hearing, or had he tried the case .and then refused to decide it, or had he decided the case and then refused to sign and enter the judgment. In an alternative writ of mandamus predicated upon any one of these illustrative incidents the antecedent fact would have to be recited to give point to the charge of refusal to act. But surely it would not be necessary to couple with each of such recitals the facts which gave the magistrate jurisdiction ; in the first case, to set the action down for hearing ; in the second, to proceed with the hearing had; in the third, to decide the case after the hearing had. Pushing the illustration a step further, we have the present case. Here the refusal to proceed was after all these points of judicial action had been passed, and the court had actually signed and entered the judgment. Why should it be necessary to couple jurisdictional facts with this particular charge merely because a judgment was behind the refusal to act. If unnecessary in pleading refusal to act anterior to the judgment, it would seem to be equally unnecessary with regard to subsequent non-action.
Now, if the relator is not bound, as against the inferior court or *420the justice thereof, in his alternative writ to allege the facts conferring jurisdiction, but may properly await an allegation of non-jurisdiction in the return, then a fortiori the like rule applies to the cle.rk of the same court. The latter is not a mere ministerial officer,, but the agent by whom the judgments of the court are to be enforced. (The People v. Gale, 13 How. Pr. 268.) As was said, by Mitchell, J., speaking for the Court of Appeals in this case “It cannot be that the judges themselves are liable to this writ, if they will not proceed and pronounce judgment, and that the' officer who has no discretion to exercise, but is bound to issue the execution founded on the judgment of the court, can, in effect, make void the judgment by refusing to issue the execution founded on it, and that the judgment creditor is to be left without any specific means to obtain the execution which the law entitles him to.” (See to the same effect Terhune v. Barcalow, 6.Halst. 38, and Laird v. Abrahams, 3 Green, 22.)
In the present writ it is alleged that in an action brought in the court in which the relator was plaintiff and one Rasines was defendant, a judgment ivas recovered by said plaintiff against said defendant in said action for the sum of $177.16, which judgment was duly entered and docketed in the clerk’s office of said court. Can it be that when the clerk of the court is applied to for an execution on that judgment he can say to the successful suitor, “ You must first show that the court .of "which I am the agent and part of the machinery had jurisdiction to grant you this judgment.” This is. precisely what he says when he demurs to the writ, upon the ground that it neither states the facts conferring jurisdiction, nor that the. judgment was duly given or, made. This position is surely untenable. As to the clerk the judgment of his court is presumptively valid,, and his duty is either to issue the execution thereon or to show affirmatively that the judgment is invalid. The other points made by the respondent are, in my judgment, frivolous and unworthy of consideration.
The interlocutory judgment should be reversed and the demurrer overruled, with costs of the appeal and of the court below, with leave to the respondent, upon payment of such costs, to withdraw his demurrer and make a proper return to the alternative writ.
Judgment affirmed, with costs.