66 Barb. 570 | N.Y. Sup. Ct. | 1873
By the Court,
The justice’s judgment and the papers relating thereto were not before the county judge, nor was the transcript before him. He could not therefore return them ; and in the absence of those documents it is impossible to pass upon the validity of either the judgment or the transcript.
The county judge acquires jurisdiction when an affidavit is presented to him setting forth the recovery of a judgment before a justice of the peace for $25 or upwards, the filing of a transcript in the county clerk’s office, the issuing of an execution to the sheriff of the
When the affidavit to procure the order for the debtor to appear was made, the judgment was a judgment of the county court, and all proceedings in reference thereto must have been entitled in that court. It was therefore irregular to entitle the papers in justice’s court, but the error does not render the proceedings void. The debtor should have applied to set aside the proceedings because of the irregularity. He cannot lie by and take advantage of it here for the first time, unless he is prepared to show that they are'void because of the defect in their title.
The statute does not require that the creditor applying for an order to examine his judgment debtor shall set out anything whatever in relation to the jurisdiction of the court by which the judgment was rendered. Section 292 proceeds on the assumption that the defendant has availed himself of all objections to the jurisdiction of the courts, and regularity of the proceedings; and they cannot be assailed in supplementary proceedings.
The judgment being docketed, and being for a sum larger than $25 and the ordinary costs in the justice’s court, it will be presumed that the judgment was for an amount which authorized it to be docketed; especially as no provision is made for trying that question in the supplementary proceedings. If the transcript was improperly filed, it was the duty of the debtor to move in the county court for relief against it.
The relator’s counsel is mistaken in saying that it does not appear that any execution was issued against the debtor’s property after the transcript was filed. It does appear that the execution was duly issued to the sheriff of Yates; as. an execution from the justice’s
The affidavit of the creditor, fairly construed, is that the execution was issued to the sheriff of the county in which the defendant resided when it issued. It was intended so to say, and it was so understood by those called upon to act upon it. It is true the word “resides” is used, being in the present tense, instead of the past tense. But I apprehend that such is the form of nearly all the affidavits used in supplementary proceedings.
The counsel finds fault with the recital, in the order, that execution had been issued “on the judgment herein.” He says, it is not true. I am unable to discover the falsity of it. The creditor’s affidavit is that execution had been issued on the judgment rendered by the justice, and which had been docketed in the clerk’s office. This is the judgment the order designates as “the judgment herein.” There is no room for cavil on the subject.
If a recital of the facts necessary to confer jurisdiction were required to be set out in the order requiring the debtor to appear, they are fully and correctly recited in the order in question. But no such recital is necessary, in such an order. Section 292 of the Code declares what the order shall contain. And although the recitals of the contents of the affidavit of the creditor are uniformly set out in the order it is not necessary that they should be. They may be useful to the officer, but their omission does not impair the validity of the order.
The day on which the debtor should appear the second time before the referee, was agreed upon between the creditor’s counsel, the debtor and the referee. Such an arrangement by parol is valid.
A contempt was clearly proved. The agreement, that the further examination of the debtor should be postponed until the 16th of December was denied by the debtor, but sworn to in positive terms by the creditor’s attorney and the referee.
The relator’s counsel is mistaken in saying that no fine could be imposed on the debtor found guilty of a contempt, unless the court should adjudge that the misconduct of the debtor had produced actual loss or injury to the creditor, or was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of the creditor. When such an adjudication is not made, the fine is limited to the costs and expenses, (The People v. Compton, 1 Duer, 519.)
The proceedings before the county judge must-be affirmed' and the certiorari quashed, with costs to be paid by relator.
Judgment accordingly.
Mullin, Talcott and E. D. Smith, Justices.]
