9 Barb. 378 | N.Y. Sup. Ct. | 1850
The appearance of the defendant before the justice, by attorney, on the return of the attachment, superseded the necessity of a summons to the defendant, and gave the justice jurisdiction of the cause. This is necessarily implied from the language of the 38th section of the act to abolish imprisonment for debt in certain cases. (Laws of 1831, p. 404.) The objection that property was seized under the attachment sufficient to satisfy the judgment, is answered by the return of the constable, that it did not belong to the defendant, and by the return of the sheriff, that the defendant had no goods and chattels, &c. The appeal, not having been followed up by the undertaking required by the code, (§§ 355, 356, 357,) did not operate as a stay of any further proceedings which the plaintiff might elect to pursue, in order to enforce the collection of the judgment.
It is urged that the code does not authorize proceedings supplementary to an execution when the judgment was rendered by a justice of the peaee, and a transcript has been filed in the office of the county clerk. There is no force in this objection. The 292d section, by necessary implication, places a judgment of a • justice, of which a transcript has been filed, on the same footing
It is insisted also that the affidavit on which the order was made does not show enough to give jurisdiction to the justice to render the judgment. The same objection was taken by the defendant in Dix v. Briggs, (supra,) that it was not averred in the bill that the justice had jurisdiction of the suits in which the judgments were rendered. The chancellor did not pass upon the objection, any farther than to remark, that the general rule unquestionably is, that in pleading a right acquired under the judgment of an inferior court, of limited jurisdiction, sufficient should be stated to show that such court had jurisdiction to render such judgment. It is true the affidavit on which the order was obtained, takes the place of the former creditor’s bill; but still it is not a pleading. But if it were, the code has abolished all the ancient forms of pleading. (§ 140.) And by the 161st section it is expressly enacted, that in pleading a judgment of a court of special jurisdiction it shall not be necessary to state the facts conferring jurisdiction, but such judgment may be stated to have been duly given. If such allegations be controverted, the party pleading shall be bound to establish on the trial, the facts conferring jurisdiction. This case falls within this provision of the code. The plaintiff has shown the facts conferring jurisdiction, and that the judgment was correctly given. This is a sufficient answer to the objection. The affidavit appears-to be in substance conformable to the requirements of the code.
Again; it is objected, that under the 292d section of the code, the judge, before granting the order, should have proof of suck return of the execution. It is insisted that the affidavit of the creditor is not “proof;” that “proof” means legal evidence.
It may not be amiss to look at the question upon authority. In Brown v. Hinchman, (9 John. 75,) the plaintiff obtained a warrant from a justice of the peace, under the then statutes for recovering debts to the value of twenty five dollars, upon his own oath. A question arose on certiorari whether a justice had jurisdiction to issue the warrant on the oath of the party. The 4th section of the act of 1808, (Laws of 1808, p. 376, ch. 204,) enacts that if the plaintiff “ shall prove to the satisfaction of the justice that the defendant is about to depart,” &c. he may have a warrant. The court said proof here means legal evidence, and that can not be the party’s own oath, unless the statute expressly says so. The legislature at the next session (Laws of 1809, ch. 186, p. 568, § 1,) so altered the 4th section of the act of 1808 as to allow the issuing of a warrant on the oath of the plaintiff, provided he stated in his affidavit the facts and circumstances within his knowledge, showing the grounds of the application, whereby the justice might the better judge of the neces
The foregoing cases are distinguishable from the present, in this; that in the former, the proceeding was before judgment, and contemplated the immediate arrest of the defendant, or seizure of his property; whereas in the latter the debt had already been established, and the order did not contemplate the arrest of the defendant, hut’ merely his examination concerning his property. There were, therefore, stronger reasons in those cases than in the present, to hold the creditor to strict proof of his demand, and of the facts which would entitle him to the process. Those, too, were cases of ordinary actions; this is a mere special proceeding, and not an action. The policy of the code, moreover, has been, throughout, subversive of the former rules of evidence, and has favored the substitution of the oath of the parties, for proof, in numerous instances. In all the cases of proceedings supplementary to execution which are reported, and in all which have fallen under my notice, the order contemplated by the first subdivision of section 292 has been obtained upon the ex parte affidavit of the creditor. The general sense of the courts and of the profession affords strong evidence of the meaning and intent of the law. It is believed therefore, that the affidavit in this case was sufficient.
It has been strenuously urged that a county judge has no power to appoint a referee, under the first subdivision of § 292,
It is objected that the referee was appointed by the county judge on the ex parte application of the creditor, and without notice to the defendant. The code is silent on this subject. The cause must therefore be decided by the general principles and the analogies of the law.
Remedies in the courts of justice are by the code divided into 1st, actions, and 2d, special proceedings. An action is defined to be an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. (Code, §§ 1, 2.) All or any of the issues in an action, whether of fact or law, may be referred upon the written consent of the parties. (Code, § 270.) And they may be referred in various other cases without such consent. A mo
A. reference may be ordered in a special proceeding. " The reference under cliapter, 2 of title 9 is of that character. That which is granted under the first subdivision" of section 292, does not impart to the referee the power of deciding üie-whole, or any. part of.the cause.' It merely clothes him with authority, to take the examination under oath, of .the defendant in the- exécution, concerning his property, if he shall submit to such examination, and to report the same, to the'-judge by whom he was appointed. The referee thus appointed has no power over the person or the property of. the defendant. He is the mere-instrument'in the hands óf the judge," by. whom.the examination of the former can be taken, without subjecting him to the delay and expense of a ■ personal appearanceibefore the latter. Has the judge no power to appoint á refóree". under the first'clause of section292,-without first requiring notice to be given" to the defendant? This" is'the question, which is now for the first "-time presented for our decision. ’ The practice thas' hitherto -been for- the-judge to name the referee in the order- for the; examination -of the defendant. That practice.is the most convenient for- all parties. It can work no injustice to-the defendant.', It -is not in conflict with" any requirement of" the pode'; and is-in'harmony with the' former pram
This disposes of all the objections which have been raised to the order of the county judge. They have been treatéd as if the cause was properly before the court. The creditor not having objected to the mode of considering the question, it has not been deemed expedient .to dismiss it upon a mere question of form. But it is not improper to observe in conclusion, and for the purpose of not having the" case"cited as a precedent hereafter, that it was irregular to bring this question up as a non-enumerated motion, at a general term. The remedy of the defendant, if the order of'the county-judge was erroneous, was to apply to him to vacate or modify it. As the order was granted ex parte and out of court, he could vacate or modify it without notice.' (§ 324 of Code.) If the judge refused so to do, and the order was erroneous, the defendant might probably have appealed under § 349. An order made by a" county judge in this case could be reviewed in the same manner as if made by a judge of this court; (Code, §403.)
The motion therefore must be denied, with ten dollars costs.