6 How. Pr. 286 | N.Y. Sup. Ct. | 1852
The affidavit was sufficient upon its face to give the officer jurisdiction of the proceeding at the time he issued the order. But though the return of nulla bona had been duly endorsed by the sheriff, and he had sent it on its way to the clerk’s office before the affidavit was made, it did not in fact reach the clerk’s office, and was not filed, till two hours after the making of the affidavit and the issuing of the order. It was, however, duly filed on the same day the proceedings were commenced, and before the objection was taken before the officer.
It was undoubtedly competent for the defendant to controvert any material fact set forth in the affidavit on which the order was made; and if it could be done successfully, to defeat the proceeding. But it must be remembered that fractions of a day are not enquired into by the court, except for the purpose of guarding against injustice. So the Court of Appeals have recently held in Blydenburgh vs. Cotheal (4 Comst. R. 418). In that case an appeal was taken to the Court of Appeals from a judgment rendered in the Supreme Court, before the costs were adjusted and the judgment roll filed, though on the same day; and. the court of last resort refused' to dismiss the appeal, holding that the fraction of a day ought to be disregarded. There was as much of a jurisdictional question in that case as in this. There could be no ground for appeal, and nothing to appeal from, until the judgment was entered.
In Small vs. McChesney (3 Cowen, 19), execution was issued and levied between two and four o’clock in the morning, but the judgment record was not filed till four P. M. on the same day. On motion to set aside the proceedings, the court said, “ the whole proceeding is on the same day, which the law will not
In Clute vs. Clute (3 Denio, 262), a motion was made to set aside an execution issued at two o’clock P. M., the judgment not having been docketed till four o’clock P. M. At a still later hour, and after levy made, the defendant had executed a general assignment for the benefit of his creditors. But, notwithstanding this latter circumstance, the court, under the rule I have mentioned, refused to set aside the execution.
It is shown in the case before me, that after the service of the order on the defendant, he proceeded to make an assignment to some of his creditors, who were his confidential endorsers; and the fact that such assignment will be effectual, if the proceedings before the county judge are not sustained, is urged as a reason why the fractions of a day in this case should not be disregarded. The defendant would have stood on much firmer ground if he had made a general assignment for the benefit of his creditors; for as to them, equality is equity. But even a general assignment, made under such circumstances, would not have furnished a sufficient reason for holding the proceedings of the vigilant creditor irregular, as was decided in Clute vs. Clute, above cited.
In this case the return was duly endorsed, and the execution was delivered to a person to take to the clerk’s office, in due _season. It ought to. have reached the clerk’s office within a few minutes after such delivery, and would have done so, but for the inadvertence of the messenger. When the affidavit was made, and the order granted, there was reason to suppose it had been duly filed. It was in fact filed within two hours after the making and service of the order, and long before the objection was taken on the return of the order. The voluntary assignment made to certain preferred creditors was made and taken with a full knowledge of the fact that the execution was then filed. The objection rested, therefore, on a mere technicality, which has in no respect prejudiced the defendant. I see no reason whatever to
But if theré is any necessity for relief by amendment, the authorities that warrant it are abundant and controlling. In Seaman vs. Drake (1 Caines R. 9), judgment was amended nunc pro tunc, after a lapse of several terms, by allowing the clerk to sign the roll. In Close vs. Gillespy, a judgment defectively entered upon warrant of attorney, was permitted to be amended nunc pro tunc, and an intervening judgment creditor was not permitted to avail himself of the irregularity. In Chichester vs. Candee (3 Cow. R. 39), a creditor had issued execution and levied on property, and had by mistake omitted to file his judgment record. Another execution was then regularly issued by another creditor and levied on the same property. The first creditor was permitted to file his record nunc pro tunc, so as to support his execution and retain the preference in the proceeds of the sale. In The Bank of Rochester vs. Emerson (10 Paige, 359), an amendment was permitted after a lapse of nearly a month, by filing and confirming a report on which an execution had been issued for a deficiency, but without prejudice to the rights of creditors imder a general assignment in the mean time executed. This exception was made, on the ground that the Regularity had been willful, and in view of the principle that equality among creditors was equity.
The case of Bradford vs. Reed (2 Sand. Ch. R. 163), was still more like the case under consideration. It was a creditor’s bill, and the defendant had set up in defence that the execution had not been returned and filed. Although that was the question in controversy, the plaintiff was permitted to avail himself of a rule of the Supreme Court, made ex parte, permitting him to file another execution nunc pro tunc, in place of one proved to have been mailed, but which had never reached the clerk’s office; and the opinion was expressed by the vice chancellor that the plaintiff might have had such amendment on notice.
All these, and many others to be found in the reports, are cases where amendments were allowed long after the omission, and except in one instance, without saving the rights of intervening claimants. In the case before me no such latitude of amendment
The motion must he granted on payment of $10 costs of resisting the motion.