Sill Stove Works v. Scott

71 N.Y.S. 181 | N.Y. App. Div. | 1901

Chase, J.:

The Code of Civil Procedure (§ 682) provides that a defendant or a person who has acquired a lien upon or interest in his property after it was attached may at any time before the actual application of the attached property to the payment of a judgment recovered in the action apply to vacate or modify the warrant.

Proof of a subsequent valid levy upon the same property covered by the prior attachment is a necessary condition to the right of a subsequent creditor to initiate the proceeding to vacate the prior attachment. Until this fact is established by legal evidence, he is a mere stranger having no light to'intervene. (Tim v. Smith, 93 N. Y. 87 ; Hodgman v. Barker, 60 Hun, 156 ; Dayton v. McElwee Manufacturing Co., 46 N. Y. St. Repr. 139; Selser Brothers Co. v. Potter Produce Co., 77 Hun; 313; Ladenburg v. Commercial Bank, 2 App. Div. 477; Steuben County Bank v. Alberger, 75 N. Y. 179.)

Inferior courts have only such jurisdiction as is expressly conferred upon them by statute, and it is a universally accepted proposition that jurisdiction of inferior courts will not be presumed but must be made to appear affirmatively.

So it has been held in an application to set aside a prior attachment by a judgment creditor whose judgment had been recovered in an inferior court that it is necessary to show that such inferior court had jurisdiction of the person of the defendant and of the subject-matter. (Hamerschlag v. Cathoscope Electrical Co., 16 App. Div. 185; Grob v. Metropolitan Collecting Agency, 30 Misc. Rep. 314.)

The judgment of the respondent was recovered in Justice’s Court, and unless the filing of a transcript thereof with the clerk of the county of Warren and proof of that fact made it unnecessary for the respondent to furnish other proof of the jurisdiction of the justice, it is clear that the respondent did not make the preliminary proof necessary to entitle it to attack the papers on which the warrant of attachment was issued in favor of the plaintiff.

' The Code of Civil Procedure (§ 3017) provides : “ A justice of the peace who renders a judgment, * * * must, upon the application of the party in whose favor the judgment was rendered, * * * deliver to him a transcript of the judgment. The county clerk * . * .,"x" must upon the presentation of the transcript * * * file it in his office and docket the judgment as of the time of the receipt of the transcript. * * * Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly. "x" * * ”

The purpose of the statute relating to the filing of transcripts of justices’ judgments as it existed before the Code of Procedure appears by the statute itself to have been primarily to make the judgments so filed a lien on real estate.

The subsequent provision of the Code of Procedure (§ 63) making judgments so filed judgments of the County Court and the present provision of the Code of Civil Procedure by which such judgments are deemed judgments of the County Court and expressly directing that they must be enforced accordingly, were undoubtedly intended to facilitate the collection of judgments from both personal and real property and to avoid the necessity of establishing. the jurisdiction of the justice rendering the judgment as a preliminary question in every proceeding or . action growing out of the enforcement of such judgment.

Justice Bradley in Agar v. Tibbets (46 Hun, 52), in discussing this subject, says: “ The statute gives to the judgment the effect of lien upon real property and provides for the issuing of execution, for the purpose of in that manner enforcing the collection of the judgment, and as a consequence prima facie vesting title in the purchasers on sales made by virtue of the execution, and if for that, purpose the transcript filed were not sufficient evidence of the judgment to support its execution, it may be seen that much embarrassment might follow to the purchaser or those taking property under the sale. And especially so if the question should arise at so remote. a period that the justice or his docket could not be obtained to prove the fact of his jurisdiction to render the judgment.”

The motion made by the respondent related to the enforcement of its judgment, and proof of the filing of the transcript of the judgment as provided by the Code of Civil Procedure was prima facie evidence that the justice had jurisdiction to render the judgment. (Jackson v. Jones, 9 Cow. 182; Jackson v. Rowland, 6 Wend. 667; Dickinson v. Smith, 25 Barb. 102; Stephens v. Santee, 49 N. Y. 35 ; Belgard v. McLaughlin, 9 N. Y. St. Repr. 38; S. C., 44 Hun, 557.)

The cases of Dieffenbach v. Roch (112 N. Y. 621), Harris v. Clark (65 Hun, 361), Agar v. Tibbets (46 id. 52) and Agar v. Tibbets (56 id. 272) are not in conflict with the views above expressed. The first two cases relate to the construction of another section of the Code of Civil Procedure and the other two cases relate to the proof necessary to enable the plaintiff to recover in an action on a judgment rendered in Justice’s Court where a transcript had been filed with the county clerk, and the distinction between such cases and the case now under consideration is stated in the opinion in the first Agar v. Tibbets case.

The respondent made .the necessary preliminary proof to entitle it to attack the papers on which the plaintiff obtained the attachment against the property of the defendant.

The affidavit on which the attachment "was granted is made by the attorney for the plaintiff in this action, and all the allegations thereof, except those relating to the defendant’s admissions to him, are necessarily made upon information and belief. There is not sufficient in the affidavit to show that the plaintiff is entitled to recover the amount stated over and above all counterclaims known to the plaintiff. (Jordan v. Richardson, 7 Civ. Proc. Rep. 411.) The information in regard to the defendant removing a large number of stoves in the night time and placing them in storage was hear-say, and no effort'seems to have been made to procure the affidavit of the helper who gave the information to the attorney and no explanation is made why such affidavit was not procured. (Abrams v. Lavine, 90 Hun, 566.) The other admissions made by the defendant are not inconsistent with an honest intent to pay the claim of the plaintiff as the affidavit shows that the defendant promised to do. (Shuler v. Birdsall Mfg. Co., 17 App. Div. 228; First National Bank v. Wallace, 4 id. 382.) The affidavit is insufficient to sustain the attachment, and counsel for the plaintiff' did not even discuss before us the sufficiency of such affidavit, but based his contention that the orders should be reversed wholly upon the claim that the respondent had not made the preliminary proof necessary to entitle it tó attack the papers on which the attachment was. granted.

All concurred,

Orders affirmed, with ten dollars costs and disbursements.