The referee found, from the evidence before him, that the judgment of the county court, upon which the execution was issued and the property in question sold, to the vendee of the appellant, was void, inasmuch as no judgment had ever been rendered in the justice’s court.
This presents a new question, of considerable importance, and deserves careful consideration. The Code (§ 63) provides that, “ a justice of the peace, on the demand of a party in whose favor he shall have rendered a judgment, shall give a transcript thereof, which may be filed and docketed in the office of the clerk of the county where the judgment was rendered.” The section further provides that the time of the receipt of the transcript by the clerk shall be entered thereon, and entered in the docket, “ and from that time the judgment shall be a judgment of the county court.” *542But it is quite certain that in such a case there can be no judgment in the county court, unless a judgment has in fact been rendered in the .justices’ court. If there has been no judgment rendered by the justice, the filing and docketing of the transcript in the county clerk’s office is a mere nullity. The question is essentially jurisdictional. If it is not a judgment in the court in which the action was commenced' and tried, it cannot, in the nature of things, be such in the county court. The appellant, on the trial before the referee, objected to the introduction of evidence to prove that no judgment had been rendered by the justice who furnished the transcript, insisting, as his counsel does here, that the judgment is a judgment of the county court, and is conclusive, and can neither he disputed nor contradicted. But unless the law has made it a judgment, it was not a judgment, and in all cases a party is at liberty to show want of jurisdiction in relation to the subject matter, or the legality of the organization of the court, in order to defeat a judgment. (Oakley v. Aspinwall, 3 Comst. 547. Noyes v. Butler, 6 Barb. 613. 2 Wait’s Laiv and Practice, 15.) And by parity, in a case like this, it may be shown that the transcript is entirely false or a forgery, and that no such judgment was ever in fact rendered by the justice. That was what the respondent sought to do here. The transcript is prima facie evidence, not only that the judgment has .been rendered by the justice, but that he had jurisdiction to render it, and when presented to the county clerk, properly certified by the justice, is sufficient to authorize him to file it, and .docket the judgment. And the judgment of the county court is sufficiently established, prima facie, by the production in evidence of a duly certified copy of the transcript and docket by the county clerk. (Dickinson v. Smith, (25 Barb. 102.) The action was tried before the justice by a jury, who rendered a verdict in favor of the plaintiff) which the justice duly entered upon his docket on the same day, and as the presumption *543is, immediately after it was rendered. But it does not appear from the docket, that any thing farther was done by the justice, except to put down the several items of costs and add them up with the verdict. Ho judgment was rendered, as appears by the docket, at all. Merely entering the verdict in the docket, and putting down the items of costs and adding them up with the verdict, and thus ascertaining the sum total, and nothing more, is not rendering a judgment on such verdict. Judgment must he rendered, and entered in some way as a judicial-act. The statute, (2 R. S. 247, § 124,) provides that in all cases where a verdict shall be rendered in a justices’ court “ the justice shall forthwith render judgment and enter the same in his docket.” The decision must be evidenced by some official act. A decision in the mind of the justice, unless it is entered in the docket, or in the minutes of the trial, is of no avail whatever. It is not a legal rendering of judgment, and will not constitute a judgment in law, (2 Wait's Law and Prac. 694. Seaman v. Ward, 1 Hilt. 52.)
In the transcript which the justice furnished for the county clerk, it appeared that judgment was rendered, and entered in the docket of the justice, on the day the verdict was rendered. And in his certificate he set forth that the transcript was “ a correct transcript from his docket” of a judgment on record in his office, and of the whole of said judgment. On the trial, the justice was examined as a witness, and produced his docket, and it appeared that there was no such entry upon his docket as appeared in the transcript certified to by him, and that none such had ever been made there. The justice, on his examination, testified that he made the entries which appeared upon his docket at the time the verdict was rendered, but was unable to state that he had made any entry of judgment in his minutes, or anywhere. The verdict was rendered and entered in the docket the 23d of January, 1862, and the transcript given on the 3d of February thereafter. "Upon this evi*544dence, I think, the referee was authorized to find, as matter of fact, that the justice never made any entry of judgment in any way; and never rendered judgment upon the verdict. The presumption is that he did so find as matter of-fact. It is incontrovertible that none was ever entered, at any time, upon the docket. If no judgment was rendered by the justice, there was, of course, no foundation on which the judgment of the county court could stand, and it was no judgment. It has been held that if the justice enter the judgment in his minutes of the trial, in due time, it is a sufficient rendering of the judgment, although it is not transferred to the docket until after the time for entering it in the docket, prescribed by statute, has elapsed. (Walrod v. Shuler, 2 Comst. 134. Hall v. Tuttle, 6 Hill, 38.) But those decisions do not affect the question here. In this case no entry has been made, and there is no case holding that a judgment can be rendered, so as to become a valid judgment in law, unless it is entered either in the minutes of the justice, or in his docket at the prescribed time for rendering judgment. I am of the opinion that the judgment is not completed, so that it can be enforced by execution, until it is entered in the docket, even where it has first been entered in the minutes in due time. (2 Wait's Law and Prac. 696.)
The appellant’s counsel excepted to the ruling of the referee, excluding the answer to the question put to the justice, by him, as to whether he made any other entry of judgment in the action, except that which he made on page 112 of his docket. The objection to the answer was that if he made any other entry, the' entry itself would be the best evidence. The question obviously did not refer to the justice’s minutes, as the justice had been examined fully in regard to the entries made therein. If it referred to some other place in the docket, the docket was present, and the entry would show for itself, and furnish the best evidence ; and in any case, I apprehend, it is not competent *545to prove by parol, the entry of a judgment, not upon the minutes of the justice, nor upon his docket. The decision of the referee, as the case stood before him, was, I think, correct. This is enough to dispose of the case, as the appellant clearly had no title, except what was derived from the sale under the void judgment and execution.
But even if the judgment was not void, I am of the opinion that the referee was right in holding that the property was the property of the respondent at the time the levy was made.
The contract, according to the finding of the referee, and according to the evidence in behalf of the respondent, was not within the statute of frauds, but belonged to that other class of contracts where the vendor agrees to furnish materials and manufacture for, and deliver to the vendee, at a future day. It appears from the evidence that Daniels, the judgment debtor and respondent’s vendor, wanted work for the winter, and applied to the respondent to furnish employment; and it was agreed between them that Daniels should cut timber and- make it into railroad ties fz’om his own land, or land in his possession, for the respondent, and deliver the ties at twelve cents apiece; that the respondent should furnish money -as the work progressed, and the ties were to be the property of the respondent as soon as thetz-ees were cut from the stump. The timber for the .ties had all been cut and hauled upon the land of a third pei’son, and there "vez’bally turned ' out to the respondent as his property, before the levy. There was some conflicting evidence, but the finding of the referee is conclusive as to the facts, upon this question. The true criterion in all such cases is, whether the woz’k and labor required in order to prepare the subject matter of the conti’act for delivery, is to be done, for the vendor himself, or for the vendee. If for the latter it is simply a case of hiring, and not within the statute. (Parker v. *546Schenck, 28 Barb. 38. Donovan v. Willson, 26 id. 138. Bronson v. Wiman, 10 id. 406. S. C. 4 Seld. 182.) Here the labor was manifestly for the respondent, upon his employment. The verbal delivery or turning out was of no consequence. But by the agreement the timber was to belong to the respondent the moment it was severed from the stump, and the vendor was to work it up into ties for the vendee, as his employer. The referee, therefore, rightfully held that the timber became the property of the vendee, as soon as it was severed from the stump. The judgment should be affirmed.
[Monroe Genera Term, September 7, 1868.E. D. Smith, Johnson and J. C. Smith, Justices.]