In re Quick

87 N.Y.S. 316 | N.Y. App. Div. | 1904

Parker, P. J.:

One of the provisions of the statute under which these proceedings were taken requires that at least fourteen days before the petition is presented to the court the petitioner must serve upon the judgment creditor a copy of such petition and schedules “together with a written notice of the time when and place where they will be presented.” (See Code Civ. Proc. § 2205.)

It is conceded that such service was never made, and that without it, or some service equivalent to it, no order discharging the debtor could lawfully be made. The following cases are authority for the proposition that a serviceof the petition, schedules and notice as required in section 2205 of the Code is indispensable to invest the court with “ jurisdiction of the particular case.” (Bullymore v. Cooper, 46 N. Y. 236, 243; Goodwin v. Griffis, 88 id. 629; Seward v. Wales, 40 App. Div. 539.)

It is urged, however, that the county judge has excused the petitioner from making the service required by such section 2205, and has substituted therefor the order to show cause that was granted on September fourth ; and his authority to do so is claimed to be given by section 780 of the Code. That section provides that if notice of. a motion or of any other proceeding in an action (or in a special proceeding it may be conceded) before a court or'a judge is necessary, it must, if personally served, be at least an eight days’ notice, except where special provision is otherwise made by law ór by the General Rules of Practice; unless the court" or a judge, upon an affidavit showing grounds therefor, makes an order to show cause why the application should not be granted, and in such order directs that a service of less than eight days before it is returnable be deemed sufficient. Very evidently this section applies to matters that are already pending and over which the court has already acquired jurisdiction. In those instances, where by that section a motion of eight days is required, a judge may, on cause shown, require a less time by an order to show cause; but as to any of those steps that are required by statute to be taken in order to inaugurate a new action or proceeding such section cannot be made applicable. It may be said of this section, as was said of rule 38 of the General Rules of Practice. by the Court of Appeals in Matter of Argus Co. (138 N. Y. 557, 566), that it “ may well be construed as referring alone to those incidental applications ordinarily denominated motions, which are made during the progress of an action or special proceeding after its commencement, and not as embracing an application which is the foundation of a statutory remedy.”

The proceedings for the discharge of. an imprisoned debtor are not commenced until the petition, schedules and affidavit, with due proof of service, as prescribed in section 2205 are presented to the court. (See Code Civ. Proc. § 2208.) Therefore, when the order to show cause was granted, there was no proceeding whatever pending, ■ in which the order could be deemed to have been made. There was no motion to be then made which under section 780 could be made in eight days, • and which the petitioner might, under the same section, ask permission to make on a less time. But the order was in efiect a mere permission by the county judge to the debtor to inaugurate the proceedings, in a method different from that required by statute. It was a changing of the provisions of section 2205, and not a mere change of the eight days’ notice of motion' provided for in section 780 of • the Code. For such reason section 780 has no application whatever to the situation. It conferred no authority upon the county judge to dispense with the service required by section 2205, and, therefore, the case stands as if no service whatever under that section had ever been made. The county judge might as well have dispensed with the service of the petition and schedule altogether as to have made the order which he did make, and,, in effect, the County Court Jias made the order of discharge without any service whatever having been made upon the judgment creditor. Within the cases above cited such an order would be utterly unwarranted and should not be sustained.

The order, appealed from must be reversed, with costs.

All concurred, except Houghton, J., not voting.

Order reversed, with ten dollars costs and disbursements.