In re Hurd

9 Wend. 465 | N.Y. Sup. Ct. | 1833

By the Court,

Nelson, J.

By the provisions of the statute on this subject, the officer granting the warrant of attachment is required within twenty days after the appointment of trustees to make a report to this court of all the proceedings had before or done by him; and this court, upon an examination of such report, are authorized to correct any errors therein, and make such order as shall seem just. 2 R. S. 13, &c. § 68, 70. If, therefore, upon an examination of the report in this case, it appears that the officer granting the warrant of attachment had no jurisdiction in the matter, and that the warrant improvidently issued, it is the duty of this court to correct the error, by setting aside the whole proceedings.

It appears that the persons proceeded against as non-resident debtors are the personal representatives of a deceased debtor, and that the warrant of attachment was issued against them in their representative character. It is insisted on their behalf, that-the statute limits this remedy to a debtor individually,end does not warrant proceedings against his personal representatives. This is undoubtedly the true construction of the act. In Jackson v. Walworth, 1 Johns. Cas. 372, it was holden that the then existing statute respecting absent debtors did not warrant proceedings against heirs, executors, trustees or others claiming merely by right of representation. The statute is now much more explicit than it was previous the revision, and from a note of the revisers we are warranted in the conclusion that its phraseology was altered to conform to the decision in Jackson v. Walworth. The language of the act is, “Such application, (i. e. the application for the attachment,) may be made by any creditor resident within the state, or out of it, or by his personal representatives, having a demand against such debtor personally,” ’&c. 2 R. S. 3, § 3, speaking of the debtor in his individual character, in contradistinction to the representative character of an executor or administrator. It is also worthy of remark, that although in this very section the remedy by attachment is given to the personal representatives of the creditor, it is not given against the personal representatives of the debtor, which it is fair to presume would have been done, had such been the intention of the legislature. A subsequent section, however, removes all doubt as to the intention of the legislature : By the 64th sec. p. 13, it is enacted, that if a debt- or against whom a warrant of attachment has issued, shall die before the time limited for his appearance, the proceedings on the warrant shall be stayed, and the property seized shall be delivered to his personal representatives. Had it been contemplated that the' representatives of a deceased debtor might be proceeded against under this statute, this provision would not have been found in the statute, and on the contrary, provision would have been made for the continuance of the proceedings against the representatives. In view of this explicit enactmentthat the proceedings already commenced shall stay in case of the death of the debtor, and that the property seized shall be delivered to his personal representatives, the language of the previous sections should be strong and imperative indeed, to warrant the conclusion that proceedings may originallybe instituted against representatives. Instead of being so,they appear to me to justify no other construction than that an attachment can issue only against a debtor for a demand against him personally, or in his individual character. According to this view of the question, the officer who issued the warrant of attachment had not jurisdiction, and consequently the warrant improvidently issued.

It is objected, however, on the part of the creditors who sued out tiie warrant, that the administrators having acqui. esced in the proceedings until now, the motion to set aside the warrant is too late, and that it ought, on that ground alone, to be denied. In support of this objection, a section of the statute is relied on, which provides that the appointment of trustees shall, in all cases except on the hearing of a petition previous to such appointment, be conclusive evidence that the debtor named in such appointment was a non-resident debtor, within the meaning of the act, 2 R. S. 12, § 62. This section is a transcript of part of the 26th section of the former act, 1 R. L. 163, which declared that the appointment of trustees should be conclusive proof in all courts that the debtor was at the time absent, within the meaning of the act, and that the appointment and proceedings previous thereto were regular, its effect is to preclude all inquiry into the regularity of the proceedings, and to estop the party from denying that he was an absent debtor; but it does not debar him from contesting the jurisdiction of the officex', or insisting that his case is not within the statute. Such is the question presented on this motion, and consequently the section relied on in opposition has no application. The want of jurisdiction appears on the face of the proceedings; and this court, having power to correct any errors therein and to make such order as shall seem just, are bound to do so without regard to the seeming laches of the administrators. The attachment and all subsequent proceedings thereon are set aside.