96 N.Y.S. 191 | N.Y. App. Div. | 1905
Lead Opinion
. In People ex rel. Lawrenae v. Brady (56 N. Y. 182, 191) the court say : “We are óf opinion that the previous adjudications in proceedings on habeas corpus are no answer to a new writ issued on the application of the relator. * * * In this ease the relator is-restrained of his liberty, and a decision under one writ refusing to discharge him did not bar the issuing of a second writ by another court or officer.”
In Matter of Quinn (2 App. Div. 103) the court say : “ It is settled law that,-With the.exception of a narrow class,of cases, such as the custody of infants, a decision on habeas corpus does not create an estoppel even upon renewals of the writ, and never operates asá former adjudication in other litigations.”
• We .hold, therefore, _ that the order discharging ' Losaw from custody in the habeas corpus proceedings was not res ad/judicata as against the defendant.in this action. ,
The question remains whether the trial court'was correct in holding that the imprisonment of the plaintiff upon the execution issued by the defendant was, as matter of law, a wrongful and unlawful act. It is very clear that in the action which Smith brought against Losaw before the justice, if he had recovered he could have execution against the. person of Losaw for. the recovery and for costs. The nature of the. action, it being for trespass on real estate, warranted such an arrest. (Code Civ. Proc. § 549, subd. 2; People ex rel.. Gates v. Fargo, 4 App. Div. 544.) \
It also seems very clear that; the judgment of the County Court reversing on appeal the judgment of the justice and rendering Costs against Losaw, but not directing any new trial thereof, was a-final judgment in the action against, him. Although it is true that it does not determine whether Losaw did or did -not commit the wrongs which jm such action are charged against him, it put. an end to that litigation. The judgment, therefore, is clearly, one upon which execution against the person. may issue under the provisions of section 1487 of the Code of Civil Procedure, as that section has frequently been interpreted by the courts. In Safer v. Haft (86
It is also further said in Safer v. Haft (supra) that section 15 of the Code of Civil Procedure, which was there relied upon by the plaintiff as exempting him from such an arrest, expressly excepts costs “ awarded by a final judgment from the prohibition against arrest and imprisonment for the non-payment of costs.”
It is urged by the respondent’s attorney that it has never been shown th-at • Losaw has -committed any wrong, and that hence it is an outrage to imprison him because he cannot pay the costs of the action that was brought against him. This claim was urged and recognized in Parker v. Spear (62 How. Pr. 394), but it was there said that “ the judiciary have no power to make the law,” and hence the rule was there enforced as it was found to have been enacted. With this sentiment I heartily agree. The decisions above cited clearly establish the proposition that section 1487 of the Code of Civil Procedure applies to the collection óf costs as well as to the claims for damages recovered, and in each one of them the execution ran against the person of one who had not been adjudged guilty of any wrongful act. No law has as yet been enacted in this State relieving either party in an action like, this from the collection of costs by execution against the person, provided such costs were awarded by final judgment in the action. On the contrary, by the
I am of the opinion that the trial court erred in holding that the imprisonment of Losaw was wrongful, and that for such error this judgment must be reversed.
All concurred, except Chase, J".* dissenting in an opinion ; Houghton, J., not voting, not being a member of this court at the time this decision was handed down.
Dissenting Opinion
There, is no reported casé where the exact contention of the appellant has been sustained, and I am not in favor of extending the right to imprison for debt. The construction of the statute so as to authorize a defendant to issue execution against the person of a plaintiff on a judgment against him for costs, where an action has been brought by him for a tort in which he has failed to recover, is based upon a contention in conformity with the principle that “ all they that take the sword shall perish with the sword.” It is now proposed to further sustain the right to imprison for debt by strictly construing the language of section 15 of the Code of Civil Procedure so as to authorize the imprisonment of a deféndant, although he has never taken the sword and although the plaintiff has failed to establish his complaint. By said section 15 it is provided that a person shall not be arrested or imprisoned for the non-payment of costs awarded otherwise than by a final judgment or a final order made in a special - proceeding instituted by a State writ. In this case the judgment of the County Court reversing the judgment of the Justice’s Court in favor of Losaw, without remanding the case for a new trial, is final, in that it puts an end to this action, but it is not a determination that Losaw committed the wrong charged in the complaint. Smith not only failed in the Justice’s Court to obtain a judgment establishing that Losaw had trespassed Upon his real property, but the judgment in the County Court left the controversy wholly undetermined, although a new action can be brought by Smith to recover damages for the wrong claimed by him. In construing the statute w.e must look to the purpose for which it was
Section 15 of the Code of Civil Procedure seems to have been enacted for the express purpose of preventing an arrest or imprisonment for the non-payment of costs unless the wrong charged in the complaint is first finally established against the defendant, or the action is terminated against the plaintiff’s contention, and I think it should be so construed in this case, and that the judgment and order should be affirmed, with costs.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.
