114 N.Y.S. 1002 | N.Y. App. Div. | 1909
This is an appeal from an order entered on the 11th of December, 1908, vacating an attachment granted on the 25th day of March, 1908, and vacating and setting aside a- judgment entered on the 3,1st day of July, 1908, and ordering that any and all proceeds of sales, and moneys collected by the sheriff, and all property attached remaining in his hands be delivered and paid over to the defendant and released from said attachment.
On the 25th of March, 1908, on the summons and complaint and the affidavit of Edward E. Yreeland, verified on said day, and an undertaking, a warrant of attachment was issued herein upon the ground that the defendant was a foreign corporation. This affidavit
The affidavit upon which the warrankof attachment, was granted was ’ put on file in the county clerk’s office and has there remained subject to examination. It was shortly after its filing examined. It was not due to" any fault or negligence on the part of the plaintiff and its attorneys that the moving party did not ascertain, until months after its filing and the entry of judgment herein, that said
The order appealed from, which vacated the attachment and the judgment, can only be sustained upon the ground that the affidavit was a nullity, and that, therefore, the court had nothing before it upon which it could issue the warrant of attachment. The affidavit was not a nullity. It was taken before a notary public duly authorized to administer oaths and take acknowledgments. There is no provision of code or statute which forbids the attorney of record of .a party to take an affidavit to be used in the case! It is a mere rule of practice formerly existing in the Court of King’s Bench, followed and adopted by the, courts of this State.
As stated in Taylor v. Hatch (12 Johns. 340): “ The practice of the [Court of King’s Bench] is not to allow an affidavit taken before the attorney in the cause to be read. It is a very fit and proper rule, which we shall, therefore, adopt as the practice here. As the party may, however, have been led into a mistake as to the practice, we give him leave to withdraw his motion and to renew it again at the next term on a proper affidavit.” In that, case the objection was made when the attorney was about to read the affidavit to the court.
In People v. Spalding (2 Paige, 326) the affidavit in question had been taken before the solicitor. The chancellor said: “ The rule which excludes an affidavit taken before the attorney is merely techni- - cal, and has never in this State been extended beyond the case of the attorney or solicitor on record. In Willard v. Judd (15 John. R. 531) the Supreme Court refused to extend the principle to the counsel in the cause! And in Hallenback v. Whitaker (17 id. 2) the same court decided that it did not extend to the partner of the attorney on record, although he was interested in the profits of the business. The Supreme Court reluctantly consented to adopt the rule in the case of Taylor v. Hatch, because they found the practice to be thus settled in the court of King’s Bench. * * * As
In Gilmore v. Hempstead (4 How. Pr. 153) a motion to 'set aside the proceedings of plaintiff after judgment, because the complaint was sworn to before the plaintiff’s attorney, was under consideration. The court, after stating the rule of King’s Bench and citing the foregoing cases, said: “ Buc the defendants are too late. They should have-moved to set aside, and .not have treated it as a nullity, and lie by till after judgment. Here has been great delay. Hone of the books, I believe, say it is a mere nullity. It is an irregularity., though one which may subject the attorney or solicitor to costs. (In ré Hogan, 3 Atk. 812.) But I do not find the rule carried further. Chitty says it will not be received. (Ch. Gen. Pr. 292.)
In the same report (at p. 290), in- Anonymous,'where amotion had been made to set aside the jurat to the complaint, the affidavit and tlie undertaking of the sureties, for irregularity on the ground that the complaint and affidavits were sworn to before the plaintiff’s attorney, the court granted the motion but gave the plaintiff leave mane pro tunc to file a new complaint properly verified and a new affidavit. "
In Post v. Coleman (9 How. Pr. 64) the court said : “ The rule which excludes the attorney from taking the affidavit in an action is merely technical.”
In Linck v. City of Litchfield (141 Ill. 469) the court said : “ But, as held in Gilmore v. Hempstead, supra, the other party should at once move to set aside the proceeding for irregularity; that the proceeding cannot be treated as a nullity,, and that the failure of the opposite party to take advantage of it in apt time, will operate as a waiver of the irregularity.”
The case principally relied upon by the respondent (Kuh v. Barnett, 57 N. Y. Super. Ct. 234) was an appeal from an order vacating a preliminary injunction and was promptly made.
Section 721 of the Code of Civil Procedure provides that a judgment in a court of record shall not be impaired or affected by reason of either of the following imperfections, omissions, defects, matters or things in the process, pleadings or other proceedings: “ [Subdivision] 12. * * * or for any other default or negligence of the clerk, or any other officer of the court, or of a party, his attorney, or counsel, by which the adverse party has not been prejudiced.”
The rule under consideration is a rule of practice, not even embodied in the general or special rules adopted by the courts. In the case of Baptist Mission Society v. Tabernacle Church (10 App. Div. 288) it appeared that the attorney for the plaintiff had violated a rule of practice, and in consequence thereof a judgment obtained by him was vacated and set aside. . This court reversed the judgment, saying: “ This, however, was a mere irregularity; and the judgment, having been entered,, was a valid judgment until set aside or vacated by the court. Section 721 of the Code then applies. * * * This valid subsisting judgment should, therefore, be vacated or set aside by an' order of the court only upon its appearing that there was a fault or neglect on the part of some officer of the court, or of a party, his attorney or counsel, by which the adverse party had been prejudiced.”
The facts set up in the affidavit being sufficient to sustain a warrant of attachment, having been duly sworn to before a notary public, and such facts having been in no way controverted, we are of the opinion that the fact that the notary was one of the attorneys of record, while a breach of a rule of practice held to be technical by the authorities in this State, constituted a mere irregularity which has been waived, and that, under the circumstances of this case, the warrant based thereon and the judgment thereafter entered were not void and should not have been vacated and set aside.
Irgraham, McLaughlin, Houghton and Scott,.. JJ., concurred.
Order reversed,, motion denied, and warrant of attachment and judgment reinstated, with costs to appellant. Settle order on notice.
See vol. 3, 1st Am. ed.— [Rep.