2 Abb. Pr. 20 | N.Y. Sup. Ct. | 1855
Lead Opinion
By 2 Revised Statutes, 556, sections 36 and 37, the defendant was authorized to apply to “ any judge of the court” for the order of supersedeas here asked for ; and notwithstanding the provisions of section 401 of the Code, I think he may do so still, and make his application in the first district, although the venue in the action is elsewhere.
The right to apply for such supersedeas, under the Revised
A good reason for such exception may be found in the fact, that when a party is imprisoned, and wishes to ask for a super-sedeas, if he is compelled to make his application in any particular county or district, he may, in many counties except this, be compelled to remain in jail, oftentimes for months, before “ any judge of the court” could be found to whom to make the motion. A construction which would or might operate so seriously in restraint of the liberty of the citizen, should not be adopted, unless the intent of the statute is too clear to allow of a different interpretation. Taking the above-mentioned sections of the Revised Statutes, and sections 401 and 471 of . the Code, all together, I think it obvious that the motion was properly made here. The making of that motion, the particular judge to whom, and the place where it should be made, are all left by section 471 where the Revised Statutes left them, just as the other class of proceedings in such sections were also thereby left, unaffected by part II. of the Code, also; this being a proceeding provided for specially by part III.
Chapter 8, of the Revised Statutes — the provision that the motion might be made to “ any judge of the court,” — was just as much an essential part of the proceeding as was the ability to make the motion at all within the meaning of the reservations in section 471 of the Code.
But while such is the intent and fair construction of section
This brings us to the merits.
The order of arrest was made January 2, 1852, and at the commencement of the suit.
The defendant was actually arrested January 6, 1852.
Judgment was perfected May 25, 1852.
His bail surrendered him November 25, 1853.
Order to exonerate the bail was made on notice to plaintiff, July 19, 1854.
Order to show cause why supersedeas should not be granted, made January 30, 1855.
No execution on the judgment issued, until February 10, 1855.
Supersedeas ordered February 19, 1855 — and the appeal from that order is the case before us.
The object of the arrest of a party on suit being commenced, is not to punish the defendant, but to insure his person to answer, in case of ultimate execution against his body; and that being the case, there is no reason why, if an arrest is granted in the first stage of the action, the plaintiff should not be held to proceed, and either issue an execution against his person, if the pleadings show it to be a proper case for such process, or be compelled to ask for such process, if application to the court is required, within a reasonable time after judgment.
The plaintiff caused the arrest to be made on January 6, 1852. In May succeeding he had judgment. The complaint alleged no fraud or other matter on which' an execution against the person could be issued, and the plaintiff was, therefore, if he wished to issue execution against the body, required to make special application to the court. He did not do so, but left the defendant from May, 1852, to February, 1855, in custody, under the original order of arrest. The Code has
Had the plaintiff applied, as he should have done, for execution against the person, the defendant could, on that motion, have controverted the plaintiff’s charges; and then the court, on a full consideration of the whole case, could have discharged the defendant, if the facts warranted; or if the plaintiff had caused his imprisonment under execution, he could have applied for his discharge under the Imprisoned Debtor Act. But none of these chances were afforded the defendant. Having succeeded in getting him arrested, so that he could have execution against his person, if the facts justified it, the plaintiff neglected to take any step under his judgment, from its rendition in May, 1852, until February, 1855 — and all this time keeps the defendant in custody, under the original order of arrest. Such a proceeding on the plaintiff's part I cannot regard otherwise than as in fraud of the law, and tending only to injustice and oppression. Having slept for nearly three years upon his rights, he awakes at last, only when the defendant, by this long and tedious process of surrender, by his bail, &c., has placed himself where ,he can ask the court to supersede the original order for his arrest; and the plaintiff now informs the court, when called upon to show cause why that order should not be superseded, that, after a delay of nearly three years, he has at the last moment issued an execution against the defendant’s property, and if the court will hold him in jail for two months longer, till his execution is returned, he will then ask the court to grant him an execution against his person.
The excuse is not sufficient, and the request cannot be granted. This long delay to proceed has been oppressive, and in fraud of the process of the court. The plaintiff had no right,
The order appealed from must be affirmed, with costs.
I am still inclined to the opinion, that this application is excluded from the operation of section 401 by the terms and spirit of section 471, and that the particular provisions contained in sections 36 and 37 of title 17, ch. 8, part III. of the Revised Statutes (2 Rev. Stats., 556, marg. p.), are not “ plainly inconsistent with the Code.” The defendant being in custody of the sheriff of this court, it never could have been intended by section 401 of the Code that he should be compelled to apply for relief to a justice in the western part of the State, after the action was determined by judgment, merely because the place of trial was there.
Dissenting Opinion
dissenting. — The defendant made application to a justice of the first district for a supersedeas to discharge him from custody, he having been surrendered by his bail after judgment, and the plaintiff not having charged him in execution within three months after the surrender. The application was made under 2 Revised Statutes, 556, sections 36 and 37. Section 37 authorizes the supersedeas to be allowed by any judge of the court in which such judgment shall have been obtained, unless good cause to the contrary be shown. So it is to be on motion, and on notice to the plaintiff, who m^r show cause against the discharge, even “ if the plaintiff neglects so to charge the defendant in execution.” (§ 37.)
As the supersedeas may be allowed by any judge of the court, it would be immaterial whether it were applied for
Motions must be made within the district in which the action is triable, or in a county adjoining that in which it is triable, except that when the action is triable in the first judicial district, the motion must tfe made therein. (§ 401). This is imperative, as “no motion can be made.” If it takes away jurisdiction of all motions, unless they are made in the proper district, then orders may be made in other districts, discharging defendants from execution — the plaintiff not objecting that they are not made in the proper county — and the sheriff may obey the order, and be liable in damages. Injunctions may be so granted on motion and disobe}red, and the culpable party be protected, and answer the court, that it had no jurisdiction, and therefore he treated its order with contempt.
Consent cannot give jurisdiction — but if the parties do not object that the motion is not made in the proper district, the order is just as valid as a judgment would be where the trial was in a wrong county, and the parties assented to the trial there, or did not raise the objection. Here the plaintiff does object, and the question must be decided, whether such a proceeding as this is included in the motions mentioned in section
Orders on summary applications after judgment are included among those that are appealable from the special to the general term, (§ 349, subd. 5), and the motions on which they are made are generally included in section 401. It is necessary to add, that the general restriction in section 401 cannot apply, when by special provision of law the place where the motion is to be made is prescribed in a particular case. For instance, under section 292, as to supplementary proceedings after execution, the judgment debtor is to be required to appear and answer before the judge, at a place within the county to which the execution issued; and that county must be the place of residence of the debtor. If therefore the debtor resides in the first district, the application for the order can be made only in that district; or if made in another district, the judge must appoint the place of hearing to be in that district. So, on proceedings under the non-imprisonment act, the debtor is to be brought before the judge of the county where he may be arrested. This must be so, even although the place of trial be in another county.
If the Revised Statutes had directed this proceeding to be heard before the judge where the defendant was in execution, the special provision would have controlled the general language of section 401 of the Code, and this would be the proper place to make the motion. It would have been clear that the legislature had an object in designating the place of hearing which was peculiar to this case, and so not to be affected by mere general expressions, although in a subsequent act.
The defendant, however, insists that as this proceeding is under Part III., Chapter 8, Title 17, of the Revised Statutes, the Code has no application to it, by section 471. That section
There is a particular provision in the chapter of the Revised Statutes under which this proceeding is instituted, authorizing a motion for the allowance of a supersedeas, to be heard before any judge of the court, without regard to the place of trial, but that is plainly inconsistent with the Code, which forbids motions being made in the first district, when the action is triable elsewhere.
The appeal is within time, as no written notice of the order appealed from was served. (Code, § 332). It affects a substantial right; the right of the defendant to his discharge, and the right of the plaintiff to detain him in custody, to secure the payment of his debt. (Code, § 349, subd. 5). A remedy allowed by law, as a means of obtaining the payment of a debt, is a right.
The order appealed from should be reversed, without costs, and without prejudice to the defendant’s renewing his motion in the proper district.