49 Neb. 800 | Neb. | 1896
Lead Opinion
In the district .court of Douglas county the Nebraska National Bank obtained a judgment against Henry T. Clarke and others for $-. Some time after this an affidavit was filed in that court which recited the obtaining of the judgment; that an execution had been issued thereon and returned wholly unsatisfied; that an alias execution had been issued and was then in the hands of
The defendant in error has filed a motion to dismiss the error proceeding, on the ground that the order made by the district court overruling Clarke’s motion to vacate its first order is not appealable. The proceedings of the bank against Clarke are based on sections 534 and 538 of the Code of Civil Procedure.
1. It is obvious that Clarke could not take an exception to, nor prosecute error from, the order made by the court for him to appear and submit to examination, as that order was made ex parte and without notice. Clarke, therefore, has pursued the proper practice in filing a motion to vacate the order requiring him to appear for examination, and taking an exception to and prosecuting error from the order of the court overruling his motion to vacate the order for examination. (See Palen v. Bushmill, 68 Hun [N. Y.], 554.)
2. Is the order made by the district court overruling Clarke’s motion to vacate the order for his appearance and examination an appealable order? Section 581 of the Code of Civil Procedure provides: “An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an
Section 581 of our Code seems to have been taken from the Code of Ohio, but we have not been able to find any case in which the supreme court of that state has passed upon the question under consideration here. The Code of New York is substantially like ours. And in Francis v. Porter, 88 Hun [N. Y.], 325, it was held that an order directing a reference to ascertain what books and papers defendant had the power to produce for inspection affects a substantial right and is reviewable.
In Lamonte v. Pierce, 34 Wis., 483, the defendant was ordered to appear and make disclosure in proceedings supplemental to execution. He refused to appear and the court attached him for contempt. After he was arrested he moved the court to set aside its former order. This was overruled and he took an appeal from the order of the court overruling his motion. The court said: “It is objected that the order appealed from is not appealable under the statute. But we think this objection clearly untenable. The order belongs to the second class of appealable orders specified in section * * * being a final order affecting a substantial right made in special proceedings, or upon a summary application in an action after judgment. * * * It is said that the order appealed from is not final, within the meaning of the statute, since it does not adjudge the defendant guilty of a
Martin v. Windsor Hotel Co., 70 N. Y., 101, was an action on account for professional services. The court made an order referring the case, upon an affidavit being filed that the trial involved the examination of an account. From this order Martin appealed. The question was whether the order of reference Avas an appealable order. The court of appeals decided that it was, saying: “An order of reference is an order affecting a substantial right, as the mode of trial of an action, whether by jury or by referee, is a matter of substance, and such an order is appealable,” etc. The decision of the court was based on section 349 of the Code of New York, which provides: “An order is appealable * * * when it involves the merits of the action or some part thereof, or affects a substantial right.”
In Barber v. Briscoe, 23 Pac. Rep., 726, the supreme court of Montana held: “An order refusing to set aside an order of examination of a judgment debtor in proceedings supplementary to execution is appealable.”
A statute of the state of Oregon provides: “When the governor is informed, or has reason to believe, that any banking institution holds funds of any kind which have escheated to the state, he shall direct the proper district attorney to file a bill of discovery, with proper interrogatories to be answered by such bank.” The state of Oregon filed such a bill against the Security Savings & Trust Company, alleging that the trust company was a corporation existing under the laws of the state and engaged in banking business, and had been for some years; that
The principle upon which the case just cited rests is the principle which controls the question under consideration here. The object of chapter 2 of the Code of Civil Procedure, being sections 532 to 549, both inclusive, of said Code, was to provide a remedy in aid of execution.
Motion overruled.
Dissenting Opinion
dissenting.
I cannot concur in the opinion herein filed, and the grounds of my dissent are as follows: The Nebraska National Bank obtained a judgment against Henry T.
The first case cited is Barter v. Briscoe, 9 Mont., 341, in which the third paragraph of the syllabus is in this language: “An order denying a motion to set aside an order for an examination of a judgment debtor upon proceedings supplementary to execution is an appealable order.” An examination of the facts, however, in this case discloses that when the order was made there was not in existence a judgment and that the motion was based on this fact as showing that the district court had no jurisdiction to enter the order complained of. There was no discussion of the question as to whether or not there had been an order affecting a substantial right. The case of National Bank of Westminster v. Burns, 13 S. E. Rep. [N. Car.], 871, cited by the plaintiff in error, did not involve the determination of what is implied by the words “affecting a substantial right,” hence it does not aid us in this investigation. In Robens v. Sweet, 48 Hun [N. Y.], 436, it had been shown that the judgment sought to be enforced by proceedings supplemental to execution had been discharged before such proceedings had been instituted, but the county court had permitted this discharge to be impeached as fraudulent. This the supreme court held could not properly be done, and that, therefore, the order denying the motion to dismiss the supplementary proceedings should have been sustained. In this view it was accordingly held that the order complained of was appealable, as it affected a substantial right. In Palen v. Bushnell, 68 Hun [N. Y.], 554, it was merely held that an appeal would not lie from an order for the examination of a judgment defendant made by a judge, but it was said that an appeal would lie from a ruling denying a motion to set aside such an order. What is properly implied by the words “affecting a substantial right” was
By the defendant in error in support of its motion to dismiss there were cited Bruce v. Crabtree, 21 S. E. Rep. [N. Car.], 194, Milliken v. Thompson, 54 Jones & S. [N. Y.], 393, and Joyce v. Holbrook, 2 Hil. [N. Y.], 94. In the first of these three cited cases the supreme court of North Carolina held that an appeal would not lie from an order of the nature of that sought to be reviewed in this case; in the second the same ruling was made, and in the third it was held that from an order refusing to permit the examination of a judgment defendant an appeal could not be taken. In no case which has been brought to my notice, or that I have been able to find, has it been held that a mere order requiring a judgment defendant to submit to an examination touching the condition of his property was an order affecting a substantial right. It is argued that if Mr. Clarke is compelled to show the condition of his property the harm will have been accomplished and an appeal thereafter will afford him no protection. We have not been informed what matter of importance it is necessary should be withheld from pub
Concurrence Opinion
I concur in .the opinion of Ryan, C.