28 How. Pr. 225 | NY | 1864
If the process by virtue of which Doughty was arrested and. imprisoned was void, an action for his escape could not be supported. That the process is void is a defence to the sheriff, upon the principle that having no right to detain the defendant, the creditor has lost nothing by the escape. (Phelps agt. Barton, 13 Wend. R. 68 ; Horton agt. Hendershot, 1 Hill, 118 ; Abner agt. Ward, 8 Mass. R. 19 ; Constant agt. Chapman, 2 Queen's Bench R. 771.)
The question therefore is, was the execution by which Doughty was taken issued with or without authority ? If unauthorized, then the plaintiff cannot complain that the officer suffered one unlawfully detained to escape. The execution for which he was arrested and committed to the custody of the defendant as sheriff of New York, issued out of the third district court of the city. On the 15th September, 1851, the plaintiff as assignee of one Thomas Prance, brought a suit against Doughty, in the district court. After successive adjournments the case was tried, and on the 12th of November, 1851, the justice rendered judgment against the defendant for $250 damages, and $11.50 costs, and the same was entered in the docket.
It was not stated in this judgment that the defendant was subject to arrest and imprisonment therein. The day following the rendition of the judgment, the plaintiff made affidavit “ that judgment has been rendered for the plaintiff,” &c., and on that affidavit the justice indorsed, “ execution against the body to issue—Wm. B. Meech. Issued November 13, 1851.” The clerk noted in the docket this order of the justice, and issued execution accordinglv to a
This means that the justice must adjudge that it is a case in which the party is subject to arrest, and the right to arrest must be stated in the judgment; in other words form a part thereof. It is a part of his judicial labor and duty. The provision cannot be regarded as merely directory as to the mode of proceeding, or preserving the record of the district court. The duty being judicial in its nature, the statute requiring the act to be done is imperative. (Brackett agt. Eastman, 17 Wend. 32 ; Sibley agt. Howard, 3 Denio, 72.) It is a limitation of jurisdiction, and not a statutory direction to the officers of the court. If the provision related exclusively to the ministerial act of making an entry in the docket (which in this case was to be done by the clerk), it would be otherwise. It was no part of the judgment rendered on the 12th of November, that Doughty was subject to arrest and imprisonment. The right to arrest was not passed upon by the justice. However, the day following the rendition of the judgment, on an affidavit of the plaintiff that Doughty had received the money for which the judgment was obtained in a fiduciary capacity, the justice ordered execution to issue against his person. This subsequent proceeding cannot be supported. On the 13th of November, the justice had no jurisdiction to act! He was functus officio. What he did was not merely irregular but void. He had no more right to order an execution against this person on the day after he had rendered judgment, than he would have had three months
The statute prescribes that the defendant may be arrested and imprisoned in certain cases, and that the right to arrest shall be stated in the judgment; that is, shall form a part thereof, and no other order or form of order could satisfy the requirement. When it is stated in the judgment, it is the subject of review on appeal, .and it is the only way in which the question may be reviewed on appeal. It was manifestly intended by the provision to secure to the defendant the right of appeal from an adjudication of the inferior court involving his personal liberty. Cases are
I am of the opinion therefore, that the case was properly disposed of in the court below. Doughty was arrested and detained by void process, and no action can be maintained by the plaintiff against the defendant as sheriff, for suffering him to escape. I believe the proposition to be universally true, that wherever the process by which one arrested is void, no action can be supported for his escape. When the process is void, the creditor has no just ground of complaint that the person of his debtor is not holden in custody by it.
The judgment of the superior court should be affirmed.