81 N.Y. 43 | NY | 1880
We have examined the point presented, and the various considerations urged by the respective counsel, and are of opinion that when the judgment was obtained, and the relators were charged in execution, the provisional order of arrest was extinguished, and of no force or validity, and was not revived by the reversal of the judgment.
Chancellor KENT, in Wood v. Dwight (7 Johns. Ch. 295), said: "When process is once discharged and dead, it is gone forever, and it never can be revived but by a new exercise of judicial power." In that case it was claimed that an appeal from the order dissolving an injunction operated to stay proceedings, and hence revived the process until it was finally determined, but the doctrine laid down applies to all cases, and holds that when process has once become functus officio, there is no resurrection short of a new exercise of judicial power. A party is arrested in civil cases to detain him to answer a judgment and execution. The relators in this case have complied with that requirement, and they cannot be longer held.
In Arnold v. Thomas (2 How. Pr. R. 91), the defendant, who had been arrested and given a bond to the sheriff, was discharged on filing common bail and the bail bond given up. BRONSON, J., held, that, as the order had been complied with, the defendant could not be retaken, and hence could not move to vacate the order. A different doctrine would involve great confusion.
Suppose the original judgment had been in favor of the relators and they had been discharged, could they be retaken upon the same order? Or, suppose they had given bail for the jail liberties, the same result might follow.
No authority has been cited in favor of the doctrine contended for, and it seems more in accordance with general principles applicable to process to hold, that, when once dead, it is gone forever. We do not mean to intimate that a new order might not be obtained. *46
It follows that the order of the General Term should be reversed and the relators discharged.
All concur, except CHURCH, Ch. J., and FOLGER, J., dissenting, and RAPALLO, J., not voting.
Order reversed.
