88 N.J.L. 532 | N.J. | 1916
The opinion of the court was delivered by
This is a certiorari bringing up an order of the Circuit Court of Essex county in proceedings subsequent to execution, whereby a former order made in supplementary proceedings, directing the defendant to pay a certain sum periodically from his wages, was revoked and set aside and a new order made. The case arises out of a change in (lie statute law with respect to executions that was made by the legislature at the session of 1915.
The facts are that the respondent realty company obtained a judgment in tlio Circuit Court against Russell, issued an execution which was returned unsatisfied, and then under the then existing law resorted to the ordinary supplementary proceedings and had an examination of the judgment debtor, which showed that he was in receipt of a salary, whereupon, on application to the court, there was an order on March 31st* 1915, requiring the defendant to pay plaintiff $5 a week out of his salary. All this was pursuant to section 24 of the Executions act, as amended in 1901 and 1901. See Comp. 8tat., p. 2250. On April 12th, 1915, was approved a supplement to the Execution act providing in such cases for an execution against wages. Pamph. L., p. 470. A former supplement of similar nature (page 182) is not now in-question. The supplement of April 12th provides that when execution has been returned unsatisfied and any wages, debts, earnings, salary, income from trust funds, or profits, are due and owing to the judgment debtor, or which thereafter become due and owing to him, to the amount of $18 or more per week, the judgment creditor may apply to the court without notice to
We think that the first point taken is without substance. The next point is somewhat similar, and is, that if the judgment creditor had already obtained an order under the previous act, such order could not be revoked and a new order made under the act of 1915. With this also we disagree. The act of 1915 expressly repeals all inconsistent acts, and while it might he going too far to- say that its passage would nullify existing supplementary proceedings, the proceeding under the present case amounted to an abandonment by the plaintiff of his rights under the original order—something he was manifestly entitled to do without any legal injury to the defendant —and that being eliminated, a resort by the plaintiff to the machinery of the new act. We think that both the objections urged against the order in question are without substance, and the writ of certiorari will therefore he dismissed.