| NY | Sep 5, 1863
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *292 The question at issue was, whether the plaintiff or the defendants, Abner French and Horace French, were entitled to the proceeds arising from the sale of certain property by the defendant Nott, under and by virtue of two executions delivered to him as sheriff. The sheriff assumed to decide the question of priority of the executions, in favor of the defendants French, and retain in his hands sufficient of the moneys to pay and satisfy their execution. He has really no interest in the determination of the case, except as a mere stake holder.
It is a statutory provision, that if there be several executions issued out of a court of record, against the same defendants, that which shall have been first delivered to an officer to be executed shall have preference, (2 R.S. 366, § 14;) and in making a disposition of the proceeds of the sale of the property levied on, the sheriff must ordinarily be governed by the priority in the delivery of the executions to him. The execution creditor may, however, waive the preference, or the prior execution may be withdrawn or postponed, or become dormant as to a subsequent one; in which case the latter would be entitled to be first satisfied from such proceeds.
The execution on the judgment in favor of the defendants French was, as respects its delivery to the officer, prior in point of time to the execution on the plaintiff's judgment; but these attorneys, who had fraudulently issued it, stipulated that it should be postponed to that of the plaintiff; or, in the language of the writing, the plaintiff's execution should "have the priority and the same effect in law as if first delivered to the sheriff." If the attorneys had the authority to thus stipulate, it would end the case. The judgment of the special term, in effect, simply declares this priority, and adjudges *293 the money in the sheriff's hands realized by the sale, and not paid over to him, to belong to the plaintiff.
I have no doubt that the stipulation was within the scope of the authority of the attorneys of French. They had fraudulently obtained the French judgment, and issued execution thereon, securing for it a priority of lien. The judgment and execution would, on motion, have been set aside altogether; but to avoid this, they stipulated that the plaintiff's judgment and execution should have the preference. These powers extended to opening the default which they had taken, (whether properly or improperly,) and vacating the judgment entirely, even though their clients had instructed them to the contrary. A client has no right to interfere with the attorney in the due and orderly conduct of the suit; and certainly can not claim to retain a judgment obtained, and an execution issued by his attorney fraudulently. (Anon. 1Wendell, 108; Gaillard v. Smart, 6 Cowen, 383.) So, also, the attorneys of French had control over the execution in every respect. They might have withdrawn it from the hands of the sheriff, or suffered it to become dormant as to a subsequent one, or have authorized the officer to depart from the regular and ordinary course of his duty. (Corning v. Southland, 3 Hill, 552; Waters v. Sykes, 22 Wend. 564.) An attorney has authority over an execution for at least a year and a day after judgment perfected in favor of his client, (Lusk v. Harting, 1 Hill, 659, and cases cited,) and may now even acknowledge satisfaction at any time within two years. (2 R.S., 2d ed., 286, § 26.) The stipulation, therefore, of the attorneys of French postponing the French judgment and execution to that of the plaintiffs, was within their authority, and given upon adequate consideration, viz. that a motion should not be made to set aside their judgment altogether. Instead of being an act wholly irreconcilable with their duty as attorneys of the Frenches, (which it is claimed to have been,) it was the reverse; for the retaining *294 of an advantage obtained by artifice or fraud is not a duty which an attorney owes to his client.
One of the grounds on which the defendant Nott moved for a nonsuit was, that the plaintiff's judgment was void because the affidavit and confession did not state the necessary facts to show an indebtedness from Clark Hadwin to the plaintiff. To this two or three answers may be made. 1st. The sheriff could not collaterally raise the question of the validity of the judgment; 2d. A judgment by confession is not absolutely void where there has been a defective statement, but is voidable only at the instance of a party interested; and 3d. The statement was sufficient. The objection urged is, that it does not show by whom or to whom the goods were sold. This is really frivolous. It is stated that Clark Hadwin are indebted to Read in the sum of $3300, which indebtedness arose on account of goods purchased in the year 1853; that the whole amount of the purchase was $3500, and the amount remaining due at this date is $3000; that the goods consisted of cloth, trimmings, c., and were purchased at Providence, Rhode Island, where said Read resides. It is true, it is not stated in terms that the goods were purchased by Clark
Hadwin from Read, but the words used plainly import the fact, and are susceptible of no other construction. (Neusbaum v. Keim,
The special term awarded costs against the sheriff, but the judgment in this respect was properly modified by the general term.
The judgment of the Supreme Court should be affirmed.
Concurrence Opinion
The judgment in favor of the defendants French was clearly void, as it appeared that no action had ever been commenced against them by the service of a summons and complaint, and there was no confession of judgment, or authority given to enter one. Section 134 of the code requires that the service of a summons shall be made by delivering *295
a copy thereof to the defendant personally. Section 246 provides that judgment may be had in an action on contract, for the recovery of money only, if the defendant fails to answer, upon the plaintiff's filing with the clerk, proof of personalservice of the summons and complaint on one or more of the defendants, or of the summons alone pursuant to section 130. It will be perceived that the defendants, Clark Hadwin, did not admit personal service of the summons and complaint. They merely admitted service of the summons and complaint on the 23d of January, 1854, without stating the mode in which the service was made. For aught that appeared the service may have been by publication under section 135, and the time of publication could not have elapsed when the judgment was entered. The summons and complaint may have been deposited in the post office at Ogdensburgh, in compliance with an order for publication. The written admission of a defendant of the service of a summons and complaint should state that the service was personal, by the delivery of a copy thereof to him, or the clerk has no power or authority to enter judgment under section 246 of the code. The proceeding by the Frenches was, in no sense, a confession of judgment; I think it was a nullity. The court had no jurisdiction until the service of the summons as prescribed by the code. But if the judgment in favor of the Frenches was a valid judgment, I think the evidence in the case was sufficient to show an understanding and agreement on the part of their attorneys that the judgment in favor of Read should be first entered up, and such proceedings taken as would secure his demand. Clark Hadwin told Mr. Vary, when they applied to him to draw the confession, that they were owing Read and had agreed to secure him, and that they wished to give Read a judgment, and that Allen had commenced a suit and was about to take judgment. It certainly could not have been contemplated by Clark Hadwin, or by Vary Clarke, that any proceedings should be taken by the latter to *296
defeat the object which Clark Hadwin had of securing Read. And as the Frenches had, as yet, commenced no action, Vary Clarke were bound to do nothing which should defeat the purpose of Clark Hadwin, which was made known when the confession was signed. The testimony of Vary goes to establish the agreement which the plaintiffs allege. He says that the admission of service of the summons in Frenches' case, was not spoken of until the confession was signed, and that he told Clark Hadwin that his object was to get ahead of the judgment of Allen, and that was all that was said. No intimation was given that the admission was to be used for the purpose of defeating the object of securing Read's demand. Vary knew, at the time, that Clark Hadwin were insolvent. They had talked of a compromise of their debts at 50 cents upon a dollar, and Winters' verification of the complaint in the French suit stated that Clark Hadwin told him they could only pay $100 on the demand. He also testified that he supposed the court would set aside the French execution if an application was made by Read, and that he gave the stipulation to postpone it to Read, in order to avoid the motion. The stipulation made when Vary testified the whole transaction was fresh in his mind, stated that it was the intention of Clark Hadwin to have Read's execution ahead of French's. He also testified that Clark
Hadwin told him, at the time he drew the confession, that their object was to secure Read. Upon this evidence no honest mind could fail to come to the conclusion, that the agreement alleged in the complaint was fully proved. As no action had as yet been commenced by the Frenches, I think their attorneys were at liberty to make such agreement, and that the Frenches are responsible for the violation of it, or at all events can not reap the fruits of its violation. It appeared too that Vary
Clarke were attorneys for non-resident creditors, to collect the demand of the Frenches, and there can be no doubt that they had authority to give the stipulation postponing the execution *297
of the Frenches to that of Read, (Corning v. Southland, 3 Hill, 552.) Ignoring the stipulation, they professed to act for the Frenches alone and to protect their interests, and did not violate the rule of law which prohibits a person acting as the agent of both parties to a contract. As the amendment of the complaint, allowed by the judge, changed the entire nature of the action, I think it was unathorized, but, if the views already expressed, as to the effect of the evidence on the question of the agreement to give Read's judgment preference over the Frenches, are correct, no amendment was necessary. Within the recent decisions of this court, the confession of judgment to Read was in conformity with the requirements of the code. (Neusbaum v. Keim,
The judgment should be affirmed.
All the Judges concurring,
Judgment affirmed.