8 Daly 43 | New York Court of Common Pleas | 1878
Lead Opinion
Where, as in the present case, the right to arrest arises from facts extrinsic of the cause of action, the course of procedure is different in the district courts from what it is in courts of record. In courts of record, under the Code, the action is commenced by summons, and an order of arrest must be obtained upon affidavits ; but in the district courts, in such a case, the action is commenced by a warrant granted by the justice to arrest the defendant, issued upon an affidavit setting forth the facts which authorize the arrest; the issuing of which warrant is like a commencement of the action and an authority for the defendant’s arrest, to abide the judgment. Upon being brought before the justice, the defendant may move to vacate the arrest, and if he does not do so, as was the case here, he admits that the arrest was rightfully made. This is a matter wholly distinct from the pleadings in cases like this, where the right to arrest exists upon grounds extrinsic of the cause of action. In the district courts, the action may be commenced by a warrant to arrest where the defendant has been guilty of a fraud in contracting the debt or incurring the ob
The warrant of arrest in this case was issued upon an affidavit showing that the defendant had been guilty of a fraud in contracting the debt for which the action was brought. Upon being arrested and brought before the justice, he had the right, before pleading to the cause of action, but not afterwards, to move to vacate the arrest, which, if granted, would have discharged him, as the action could not have been commenced by warrant unless he was subject to arrest. The cause of action was a debt incurred for goods purchased to the amount of $165 62, making a total, with interest, of $180 10. He made no application to vacate the arrest, thereby admitting that he had been rightly arrested, upon which the plaintiff made his complaint orally, for goods sold-and delivered, to which the defendant interposed a general denial, thereby creating an issue, which imposed upon the plaintiff the obligation of proving that the defendant had purchased from him goods to the amount sought to be recovered, and the case was then adjourned to a further day for the trial of that issue, on which day the parties appeared and the defendant admitted the sale and delivery to him, by the firm of Cook & Bernheimer, on the 27th day of December, 1876, of goods and merchandise of the value of $165 62; and that the interest on the purchase was $14 48, making a total of $180 10; and he also admitted that the firm of Cook & Bernheimer assigned their claim, against him for this purchase, and that the plaintiff was then the owner of it. It was the duty, then, of the justice to render judgment for the plaintiff for this amount, and to state in the judgment, in accordance with the 50th section of the act of 1857, before referred to, that it was rendered in a case where the defendant was subject to arrest and imprisonment, and so enter in his docket, which, it appears from the return, he refused to do ; and for his refusal to do so, the judgment which he rendered will have to be reversed, there being no other mode of correcting the error.
That this was the proper course of procedure is so plain
It was stated on the argument that the first of the cases cited, Johnson v. Florence, was reversed in this court upon a reargument. We have caused enquiry to be made in the clerk’s office, and we find no record there, either of a reargument or reversal, and if it had been reversed it would not materially affect the question now presented and passed upon.
The judgment should be reversed.
Concurrence Opinion
I concur in the conclusions of the Chief Justice and would add :—That the District Court Act, section'50, provides that when a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon it must be so stated in the judgment and entered in the docket. What cases are such as subjects defendants to arrest and imprisonment upon the judgment therein, is to be determined by section 16 of the act, that being the only enactment of grounds for arrest in the district courts. Unless judgment in the action is rendered in defendant’s favor, or he is discharged from arrest (where the cause of arrest is collateral), he is liable to arrest upon execution against the person if he has been arrested pursuaht to section 16. This is apparent from the language of sections 25 and 26, providing for the undertaking to be given by defendants in custody on any of the grounds enumerated in section 16. They are to give an undertaking to appear on the adjournment day and to surrender themselves into custody, if any execution be issued on the judgment when obtained in the action. From* this enactment it is clear that the execution against the person may be issued in every case in which a warrant is issued, for the defendant could not surrender himself into custody
In this case the defendant was arrested -for fraud in contracting the debt sued on, and the cause of action was for debt (sec. 16, sub. 3). He made no motion to discharge the warrant, and judgment oh the debt was recovered against him. It was the duty of the justice to have entered in the judgment that defendant was liable to arrest (section 50).
The judgment should be reversed, with costs of appeal and of the court below to appellant.
Van Hoesen, J., concurred in the opinion delivered by Chief Justice Daly.
Judgment reversed.
