Clute v. Clute, 4 Denio 241

Clute v. Clute

4 Denio 241 | N.Y. Sup. Ct. | 1847

By the Court, Beardsley, J.

The honesty of the first judgment was not questioned on the argument of this motion; and upon the papers before me it is quite clear that the defendant intended to give the plaintiffs in that judgment a preference over his other creditors. For this purpose the bond and warrant of attorney, with a stipulation that execution might issue forthwith, were executed by the defendant on the 16th of May. The record of a judgment on this bond was filed the next day, and an execution was issued and a levy made. If the precise time of the events of that day could be deemed ma *243terial in determining this motion, it would probably be found that the execution was issued and delivered to the sheriff at 2 P. M., the record filed at 3, and the levy made at 8 in the same afternoon.

It is undoubtedly irregular to issue an execution on a judgment until the record has been filed. By the statute “ no judgment shall be deemed valid so as to authorize any proceedings thereon, until the record thereof shall have been signed and filed.” (2 R. S. 360, § 11. See also p. 363, § 1.) The rule was the same before the revised statutes were passed. (Barrie v. Dana, 20 John. 307; Chichester v. Cande, 3 Cowen, 39.) Until the record of judgment is filed an execution issued thereon is not only irregular, but, as was observed by Chief Justice Savage, it is “ a mere nullity.” (Marvin v. Herrick, 5 Wend. 109.) But on the filing of the record it ceases to be a nullity, and thenceforth, there being a regular judgment to uphold the execution, it becomes effective against the defendant therein, as well as all others who have an interest in the question. (Small v. McChesney, 3 Cowen, 19; Clute v. Clute, 3 Denio, 263.)

But, in my view of the case in hand, the moving parties are not in a condition to make any question as to the order of the events of the 16th of May. They had, on that day, no pretence of right to the property in controversy, as their execution was not issued until several months thereafter, and for that reason cannot be allowed to show that the execution in the first suit was irregular, because issued one hour before the record had been filed.

In general, fractions of a day are unknown to the law, that period being regarded as punctum temporis and indivisible This, to be sure, is a legal fiction, introduced and adhered to for the sake of justice, but which will not be allowed to deprive any one of his rights; for “ where justice requires it, the exact time in the day in which an act was performed, may be shown by proof.” (4 Kent, 95, n. b. 5th ed.) Thus, where two executions against the same party are delivered to the sheriff on the sam,e day, it mav become material to know which was first *244received by him. (2 R. S. 365, 366, §§ 13, 14; id. 364, § 10; Lemon v. Staats, 1 Cowen, 592; Marvin v Herrick, supra.) So where different judgments are docketed, (2 R. S. 360, §§ 11, 12, 13,) or conveyances recorded, (1 R. S. 756, §§ 1, 2, 3; id. 760, §§ 24, 25; Lemon v. Statts, supra,) on the same day, the precise time of each event will be important. In these, as well as all other cases, where conflicting rights are claimed to exist, in consequence of different things having been done on one and the same day, it becomes indispensable, in order to do justice betweeen the parties, to ascertain the precise time when the events occurred; and for this purpose the fractional parts of a day may be inquired into. Upon this principle the authorities all agree, and it has been applied to a great variety of transactions. “ The law will never account by minutes or hours, to make priorities in a single day, unless it be to prevent a great mischief or inconvenience.” (Bellasis v. Hester, 1 Ld. Raym. 281.) “ Generally speaking, there is no fraction of a day, unless where it is necessary to look to it in order to answer the purposes of justice.” (Field v. Jones, 9 East, 154.) In Small v. McChesney, (supra,) which, in principle, was much like this case, the court said: “ The whole proceeding is on the same day, which the law will not divide into fractions, unless this be necessary for the purpose of guarding against injustice.” See, to the same effect, Vin. Ab. Time, (A.) 17, 18; (A. 2,) 3; (A. 3,) 7; Roe v. Hersey, (3 Wils. 274;) Sadler v. Leigh, (4 Camp. 195;) Wydown’s case, (14 Ves. 81, 87;) Lester v. Garland, (15 id. 248, 257;) Thomas v. Desanges, (2 B. & Al. 586;) Lyttleton v. Cross, (3 B. & C. 317;) 2. Stark. Ev. 1079, Phil. ed. 1842; 3 Chit. Gen. Pr. 111; Clute v. Clute, (supra.)

The first of these judgment records was filed on the 16th of May, on which day the execution thereon was issued and levied. The second record was filed in June, but the execution was not issued until October. Had this execution been placed in' the hands of the sheriff on the . day when the first was received by him, a very different question would have been presented, and an inquiry into the order of the events of that day *245might have been necessary. But such was not the fact, the second execution being issued several months after the first levy had been made. On the 16th of May, when the first execution was levied, there was, as to these goods, no conflict between the parties to this motion. The moving parties then had neither an execution or a judgment against the defendant, although the rights of the opposing parties were as perfect at that time as they have been at any time since. Allowing the first execution in point of time to stand, will give effect to what the parties to the judgment on which it issued, intended, and what, as far as these papers disclose, was just towards all persons. The moving parties, whose rights as execution creditors arose long since the first levy was made, cannot be allowed to divide the day of that levy into fractions, in order to show the execution, by virtue of which that levy was made, to have been irregular, as having issued before the record of judgment was filed. This would be allowable in furtherance of justice, but not to defeat the equities of the case. The authorities referred to are full to this point.

Motion denied.