Rugg v. Spencer

59 Barb. 383 | N.Y. Sup. Ct. | 1871

By the Courts Johnson, J.

The action' was for false imprisonment. The defendant justified under proceedings supplementary to execution, by virtue of chapter 2, title 9, of the Code. ' This title makes provision- for “ the execution of judgment in civil actions,” first, by execution; and second, by proceedings supplementary thereto, after execution shall have been issued and returned unsatisfied in whole or in part. It appeared upon the trial that the defendant in this action, who was plaintiff in the judgment in which the proceedings, in execution thereof, were instituted, obtained an order from the county judge of Cattaraugus county requiring the plaintiff, who was defendant in such judgment, to appear and answer concerning his property, before a referee named in such order. The plaintiff failed to appear in pursuance of the order, and-was proceeded against before the same judge for contempt, by order to show cause why he should not be punished for such contempt. The plaintiff' failed to appear or show cause on the day named in said order, and was adjudged guilty of contempt, and fined to the amount of the judgment and interest thereon, and the amount of the costs and disbursements in the proceedings for the misconduct and contempt, taxed at $20, and ordered to stand committed until the fine should be paid. The plaintiff was imprisoned under this order, and for such imprisonment brings this action.

Two questions only, were raised upon the trial, and the same are insisted upon here: First. That the order to appear and answer first issued, was issued without any proof by affidavit before the judge, and was void. And, second, that the fine being for an amount over $250, was greater than the judge was authorized to impose, which rendered that order and determination void also.

These questions will be considered in the order presented. The first order to the plaintiff to appear and answer on oath concerning his property, recites expressly that it had been made to appear before the judge who issued the order, “ by the affidavit”.of one of the attorneys of the plaintiff in the action in which the judgment was obtained, that judgment had been recovered in the action; that execution thereon against the property of the defendant therein, had been duly issued, and returned wholly unsatisfied, and that said judgment remained wholly unpaid.

Assuming, without discussing or determining the question, that proof by affidavit was necessary before the judge, to enable him to issue a valid order, the recital therein that all the necessary facts had been made to appear before him by affidavit is clearly sufficient, prima facie, to show that such proof had been made by a regular affidavit. It is a presumption which the law raises in support of judicial authority and proceedings. The order speaks for itself, and as all the necessary facts, to constitute it a regular and valid order-, appear upon its face, it will be deemed to be such, until the contrary is made to appear. This doctrine is well settled, and has been quite recently reiterated by this court.

But the plaintiff’s counsel contends that even if he is driven to show that no proof by affidavit was in fact made before the judge when he issued the order, that fact was sufficiently shown to rebut the prima facie proof of the recital in the order, by the papers produced on the trial, and that the burden was thus cast upon the defendant of giving further proof, that an affidavit was presented. The paper relied upon to sustain this position was a paper in the form of an affidavit in the action, found on file in the office of the clerk of the county of Cattaraugus, reciting the facts as set forth in the order, signed by the plaintiff’s attorney in the action, but not sworn to before any magistrate. There was no jurat nor the signature of any magistrate attached. On this paper was indorsed at chambers, Decembers 21, 1867, read on motion, R Lamb, county judge, filed December 21, 1867.” This is the same date as the order, and E. Lamb was the judge who issued the order. LTo other proof was made in regard to the paper. The orders and other papers in the proceedings supplementary appear also to have been filed in the same office. This paper furnished no proof, one way or the other, on the question. It was not a record which of itself imported verity, and there was no evidence whatever to show by whom the indorsement thereon had been made, or how it came to be on file in the clerk’s office. The mere fact that the other papers in the proceeding were also found on file there, formed no basis for the legal presumption, and scarcely for a probable conjecture, that this was the paper presented and which the judge had mistaken for an affidavit. The mere presentation of that paper on the trial was no proof of any fact in the case whatever, and did not tend in any degree to disprove the recital in the order. The first order was therefore valid.

Was the plaintiff then, properly adjudged guilty of the contempt, and properly fined therefor? The Code, § 302, gives to the judge who issues the order in eases of this kind the power to punish as for a contempt. The proceeding in a case like this, is under part 3, ch. 8, title 13, of the third part of the Eevised Statutes, (2 B. S. 534,) “ of proceedings as for contempt to enforce civil remedies, and to protect the rights of parties in civil actions.” By section 1 power is given " to punish by fine and imprisonment, or either, any neglect or violation of duty, or any misconduct by which the rights or remedies of a party in a cause or matter depending in court may be defeated, impaired, impeded or prejudiced, in the following cases.” Amongst the cases specified, in subdivision 3 of this section, is that for the non-payment of money ordered to be paid by a party to a suit in certain cases, “ and for any other disobedience to any lawful order, decree or process of such court.” By section 20 the court is required to impose a fine, or to. imprison a defendant, or both, if it shall adjudge him “ to have been guilty of the misconduct alleged, and that such misconduct was calculated to, or actually did, defeat, impair, impede or prejudice, the rights or remedies of any party in a cause,” &c. By section 21, “ if an actual loss or injury shall have been produced to any party by the misconduct alleged, a fine shall be imposed sufficient to indemnify such party and to satisfy his costs and expensesand by section 22, “ in all other cases the fine shall not exceed two hundred and fifty dollars over and above the costs and expenses of the proceedings.” The plaintiff here having failed to appear in pursuance of the order to show cause, the judge proceeded to inquire in regard to the alleged misconduct and contempt, and the consequences and effect of the same upon the rights and remedies of the plaintiff in such judgment. It was found that the plaintiff here, had been guilty of the misconduct, and it was also found, as recited in the order imposing the fine, “ that such misconduct and contempt was calculated to and did actually impair, impede, defeat and prejudice the rights of said plaintiff in said supplementary proceedings.” He was, thereupon, as appears, adjudged guilty of the contempt, and to pay the fine imposed. And, as appears upon the face of the order, “ all of which is here imposed as a fine upon said defendant. to indemnify the said plaintiff" for his costs and disbursements and the damage and loss sustained by said contempt in the defeat of said proceedings.” The plaintiff’s counsel objects, that it does not appear expressly upon the face of the order, that the judge did in fact find that the plaintiff in the judgment had sustained any loss or injury by the misconduct alleged. The point is, that upon his own' recital, he only found that the misconduct defeated the proceedings, and prejudiced the defendant’s rights and remedies, and not that the misconduct had been productive of actual loss or injury. But it is expressly declared, in the order, that the fine is imposed to indemnify the plaintiff in the action, not only for his costs and disbursements in that proceeding, but also for “ the damage and loss sustained by said contempt in the defeat of said proceedings.” The preliminary recital may, perhaps, be somewhat defective in not stating expressly that it appeared that actual loss or injury had been produced. But this recital, though a very proper formal part of an adjudication or order of this kind, is not a vital or necessary part, nor is it at all conclusive as to all the facts which were made to appear before the officer, or that no other facts appeared. It is sufficient prima facie for what is contained in the recital. But the recital is no evidence that nothing else was shown, or made to appear.

[Fourth Department, General Term, at Rochester, March 6, 1871.

The adjudication, or order, would have been valid without any such preliminary recital, and as it expressly appears in the body of the order that the, fine was imposed to indemnify the plaintiff" in the judgment “ for the damage and loss sustained” in defeating the proceedings, the inference is conclusive that it did so appear before him, and that he so found.

Every reasonable intendment will be made to uphold the adjudication, when it is-clearly within the jurisdiction of the tribunal to do what has been done.

It will be presumed, unless the contrary is shown by the party alleging the invalidity, that all the necessary facts were found which might have been found to support the judgment. It appears upon its face to be regular, and if anything was omitted by which it would be invalidated, it was for the plaintiff to show it. It was for him to show that he had been unlawfully imprisoned. I am of the opinion, therefore, that the nonsuit was right, and that a new trial should be denied.

New trial denied.

Mullin, P. J., and Johnson and Talcott, Justices.]