94 N.J. Eq. 251 | New York Court of Chancery | 1923
The complainant, Joseph Clinton Edwards, on January 19th, 1920, obtained a final decree in the above-stated cause against the defendant Joseph Stein for the sum of $8,72-1.37, together with costs, &c., which decree was filed January 29th, 1920, as by the record appears. On February 16th, 1921,
As a purchaser at a judicial sale, not a party to the suit, is made one by the purchase so far as questions arising from the sale are concerned (Collins v. Kiederling, 87 N. J. Eq. 12), so an assignee from him, mediately or immediately, thereby becomes a party for the same purpose, and is entitled to intervene without special application to be made a party to the suit.
The cleric in chancery having sought the advice and direction of the court with reference to his duty in the premises, Segal now moves that the clerk be directed to enter satisfaction of record.
The applicant relies upon the supplement to the act respecting executions (P. L. 1915 p. 182), which provides, inter alia,, that rights and credits of a defendant in execution may be levied upon, taken and sold, by virtue of the writ; and that the term “rights and credits” includes all rights and credits which may be attached by writ of attachment against nonresident debtors, and includes rights and credits of an equitable nature; that such rights and. credits shall be levied upon and taken in the manner in which property is attached under writs of attachment, and no sale shall be made of such rights and credits unless by leave of the court or a judge.
The applicant has submitted the bill of sale of the decree made by the sergeant-at-arms of the district court. It recites that a certain execution issued out of the district court of Atlantic Cit3r, directed to him, the sergeant-at-arms, commanding him to levy and make of the goods and chattels of Joseph Clinton Edwards, the sum of, &c., by the judgment of that court rendered against Edwards; and that to the end that the sale of the goods and chattels should be made, he, the sergeant-at-arms, by public advertisement set up at three or more public places in Atlantic City, “to wit, one each at (blank),” which notice stated that the goods and chattels of the defendant, Edwards, would be exposed to sale at public vendue, &e.; and at the time and place appointed and advertised, he openly and publicly struck off and sold the final decree in this cause to W. Lindley Jeffers, the highest bidder for the same, giving no notice that the same, as a right and credit, would be offered for sale. In other words, there appears to have been no notice that the decree would be offered for sale under the execution. The bill of sale then proceeds to acknowledge the receipt of $50, the purchase price, and, in form, grants, bargains, sells.
Levy upon goods under an execution is a prerequisite to the advertising and sale of them b3r the sheriff or other officer.
Now, in the bill of sale from the sergeant-at-arms to Jeffers it does not appear that any levy was made or attempted to be made upon the decree in chancery, nor could a levy have been made except under section 2 of the supplement mentioned, wherein it is provided that the term “rights and credits” includes all those which may he attached by writ of attachment against non-resident debtors, and such rights and credits shall be levied upon and taken in the manner in which property is attached under writs of attachment.
The Attachment act (Comp. Stat. p. 137 § 7) prescribes the mode of executing a writ of attachment. It .is, so far as pertinent, by the officer going to the person or house of the person having the custody or possession of the defendant’s property, and in the presence of at least one credible person then and there- declaring that he attaches the rights and credits, &c., of the defendant, and, with the assistance of a discreet and impartial freeholder, making a just and true inventory. This is the “levy” meant by the supplement to the Execution act provided for in the case of “rights and credits.” In attaching rights and credits the officer must go to the garnishee and give him notice of the attachment. Tomlinson v. Stiles, 29 N. J. Law 426. A garnishee is one who has property or money in his possession belonging to a defendant; and he is so called because he has had- warning or notice of the attachment. Bouv. Law Dic. (Rawle’s rev.) 870.
This is not all. The owner of the goods must have an opportunity to he heard and to contest the plaintiff’s action in seeking to subject his rights and credits to sale. The Attachment act, in section 20, provides that after the return of the writ an order shall be made for publication of notice of the attachment in a newspaper or newspapers, and judgment shall not be entered until proof be made of such publication. And section 16 provides that any defendant in attachment
Of course, no real injustice may he done to Edwards. He may have had knowledge and his decree may be practically worthless, but that does not appear, as it is not shown that there was any levy on the decree through proceedings tantamount to an attachment or otherwise, or any leave of the district court obtained for the sale of the decree. But this is not all, for, by reason of what is now to be stated, the attempted sale of the decree is void for another and a fundamental reason
There are sections in the act respecting executions which by their terms apply to those writs out of any court, such as section 10, which provides for exemption of personal property to certain debtors, or where district courts are specially mentioned, as in section 23, compelling discovery. The district courts are special statutory tribunals whose procedure is prescribed by act of the legislature, and as those tribunals are given power to enforce their judgments by executions and are also given power to issue writs of attachment and enforce them by judgments, &c., those proceedings are to be strictly pursued in such courts in accordance with their own statutory provisions. The act concerning executions existed long prior to the establishment of district courts and was and is regulative of the practice on writs of execution issuing out of courts of general jurisdiction whose procedure is according to the course of the common law, except where by its terms it may extend to executions issued .out of any statutory tribunal, the act creating which does not legislate on the particular subject or subdivision thereof. As already stated, the act of 1915 is a supplement to the act respecting -executions, and a supplement is a mere addition to the original act. See Bradley, &c., Co. v. Loving, N. J. Law 227, in which Chief - Justice Beasley observed (at p. 228) that supplements to laws from their very nature are designed as complements to their antecedents—the original acts. It is true that the Practice act applies to district courts, but Only in a limited way, and
Quite aside, however, from any non-applicability of the Execution act, original and supplemental, to the district courts, the attempted sale of the decree in this cause is devoid of effect. While the District Court act provides for the issuance and execution of attachments in substantially the same manner as in the act for the issuance of such writs out of superior courts of common law jurisdiction, nevertheless, ,no proceeding required in an attachment case appears to have been taken, nor any leave obtained from the district court to sell the decree. This provision in the statute seems to be meant to protect the defendant from the loss of a valuable right and credit by requiring leave of the court to authorize its sale, which doubtless the judge would not give unless he was shown that the defendant had notice so that he could protect himself at the sale. In this case it is not shown that any service of the writ of execution, which, in effect, would be a levy, has been made; and how could it have been made on the clerk in chancery at Trenton, the custodian of the filed decree, and the record thereof, as garnishee, by the sergeant-at-arms of the Atlantic City district court? I assume that the clerk in chancery would be the garnishee in a case where the decree itself was actually to be levied upon, while the defendant in the decree, owing the money due under it, would be the garnishee if the money so due were attempted to be levied on.
While the proceedings under the execution out of the Atlantic City district court might be shown to this court by amendment, according to the fact, nevertheless, from what has preceded and what is now about to be mentioned, the sale of the décree is totally devoid of legal foundation.
The court of errors and appeals’ decision in Conover v. Ruckman, 33 N. J. Eq. 303, has made and settled the law of this state upon this subject. Mr. Justice Depue, afterwards chief-justice, speaking for the court, said (at p. 310) that in Black v. Black, 32 N. J. Eq. 74, the writ of attachment was served on the defendant in a chancery suit against whom there was a money decree in favor of' the defendant in the attachment, and that service of the writ in that manner directly interfered with the power of the court of chancery to carry into effect one of its own decrees, and the service was declared inefficacious. And (at p. 311) it was held that service of a writ of attachment by the sheriff having the money in hand will have no greater tendency to create embarrassments or interfere with the proceedings on a decree in chancery than a judgment at law, there being no material difference in the nature of either adjudication. Later, Vice-Chancellor Bird, in Trotter v. Lehigh Zinc and Iron Co., 41 N. J. Eq. 229. held that money paid into court on behalf of a party to a suit was liable to attachment; and the decree was affirmed on his opinion. S. C., 42 N. J. Eq. 456. In another
The reason given in the cases why decrees and judgments are not in and of themselves subject to attachment is that thereby the control of the courts over their own processes would be interfered with and the administration of justice embarrassed. Chief-Justice Green, in Shinn v. Zimmerman, 23 N. J. Law 150 (at p. 152), said that there are cogent considerations founded both on the due administration of justice and on the protection of the rights of the debtor and garnishee, against the liability to attachment of judgment debts; that the garnishee’s property is liable to immediate seizure and sale under the execution upon the judgment, while at the same time he is made liable for the amount of the judgment to the attaching creditor.
Eor the reasons above set out, namely (1), that it does not appear that the requisite proceedings were taken to authorize and empower the sergeant-at-arms of the district court to sell the chancery decree, and (2) because a decree in chancery is not subject to levy and attachment in satisfaction of an execution, the clerk in chancery will be advised that he has no power to enter satisfaction on the record of the decree in question, and he will be directed to refrain from so doing, and to return to the applicant’s solicitor the warrant of satisfaction and other papers delivered to him in this matter.