Woodruff v. Chapin

23 N.J.L. 566 | N.J. | 1850

Green, C. J.

This case arises out of a controversy between execution creditors respecting the proceeds of sales of personal property, made by virtue of three several writs of execution, issued out of three different courts, directed to the sheriff of the county of Sussex. The first execution, in point of time, issued out of the Sussex Common Pleas, at the suit of Osborne; the second writ issued out of the Sussex Circuit at the suit of Woodruff, the plaintiff in error ; and the third writ issued out of the Supreme Court, at the suit of the defendants in error. At the instance of the defendants in error, a rule was entered in-the Supreme Court, requiring the sheriff to pay into the hands of the clerk of that court “ all moneys made by him by virtue of any sale or sales under the said executions or any other executions.” A rule was also entered in the said court requiring the plaintiffs in the two first named executions, respectively, to show cause why the moneys so raised should not be paid and applied toward the satisfaction of the judgment of the defendants in error. The rule to show cause was subsequently made absolute, and the entire proceeds of the sale directed to be paid to the defendants in error, who hold the youngest execution.

The first question for consideration is, whether the court below had jurisdiction of the subject matter, and power to make the order in question. The power of requiring money raised upon execution to be paid into court, and of controlling its disposition when so paid in, has been long and familiarly exercised by the courts of this state. It is an exercise of power, essential alike to the security of the officer and to the efficient execution of final process. The command of every writ of fieri facias is, that the sheriff shall pay the money made upon the execution into the court out of which the writ issues, and although in ¡practice it is usual for the sheriff to juay the money directly to the plaintiff, he may at all times, for his own security, pay the money into court, and thus relieve himself from the responsibility-of deciding upon tlio validity or priority of conflicting claims. If he pays the money levied upon execution to either of two or more conflicting claimants,'he exposes himself to the vexation and expense of a suit and to the hazard of being eventually compelled to repay the money. When the fund is in court, the court have, of necessity, a right to control.it. This right of control over moneys raised upon execution does not rest, as was insisted upon the argument, upon any abuse of the process of the court by the officer who executes the writ. The question touching the disposition of money raised upon execution is in fact rarely a question of abuse of process, but usually arises, as in the present instance, out of a question of priority, sometimes, though not always, involving a question of fraud.

Nor is the control over moneys raised upon execution exercised by virtue of the general superintending power of the Supreme Court over other tribunals or over its own officers. The power pertains to every court out of which process is issued, and may be exercised as well by the circuit courts or courts of common pleas as by the Supreme Court. Nor is the power limited to the case where all the contending claims are founded on executions issued out of the same court. Nor is it essential to the due exercise of the power that the court should have jurisdiction over the persons of the parties having conflicting claims by their being parties to the record in a suit pending in court. •

The court has/jurisdiction over the fund to he disposed of, ;by reason of its being in court. When there, the court not only may, but must direct its final disposition. If, as was contended on the argument, the court may declare invalid, or postpone its own process, but not the process of another court, the power of control would be nugatory. They might decide against the . suitors in their own court, but not in their favor; and when, as in this case, there is process issued from several courts, and ..especially -where process from other courts intervenes between different writs from the same court, no one court could possibly direct the disposition of the entire fund. The parties would be compelled in such case to resort to all the courts, successively, out of which the process issued, or be driven into equity to settle the order of priority. The exercise of this power by some one tribunal is important, not only to protect the officer from the harassing vexation of conflicting claims, but to put an end to litigation and to secure the fruit of the execution. If the court may not, by its order, finally3, dispose of the fund, so as at once to protect the sheriff and conclude the rights of the parties, there can be no end of controversy. The termination of one suit would be but the beginning of another, without the possibility of obtaining the fruit of an execution. The practice has been so long established, and the principle upon which it rests so often recognized, that it is not to he regarded as open to a doubt.

The important question is, under what circumstances may the power to control money raised on execution he rightfully exercised ? As already said, if may he exercised by any court out of which process of execution is issued. But it does by no means follow that the question, by what court the power is to be exercised, is left to be decided by a mere scramble for priority. This supposed difficulty could only have been suggested by confounding the power to control money already in court with the power to compel it to be paid into court. When the money is once in court the jurisdiction of the court attaches. The court may compel money raised upon its own process to be brought into court in order to direct its disposition, but they can exercise no such power over the process of another court. When there is a question upon which one of several executions the money is actually made, or to which of several plaintiffs in execution it is payable, that court into which the money is paid by the sheriff, either voluntarily or by consent of parties, may lawfully assume the disposition of the entire fund. The power of the court to dispose of the money results from the fact that, by the return of the sheriff, the money is in court by virtue of its own process, and that the court, alone, can properly direct its disposition.

The difficulty in the present case arises not from the fact that the court below disposed of moneys in court, but that they compelled the sheriff to bring into that court moneys raised by virtue of the process of another court. The money was not returned by the sheriff as levied by virtue of the execution out of the Supreme Court. It was not paid into that court by the sheriff voluntarily nor by consent of parties. The rule upon which the proceeding below was founded, after setting forth that the goods of the defendant were sold by the sheriff' under and by virtue of three several executions, one out of the Supreme Court, another out of the Sussex Circuit, and another out of the Sussex Pleas, and making a suggestion of fraudulent abuse in regard to the last two writs, ordered the sheriff' forthwith to pay into the hands of the clerk of the Supreme Court all moneys raised by virtue of sales made under the above named executions or any other execution.

Treating the money in the sheriff’s hands, for the purpose of this argument, as actually paid into court, as under the circumstances we are bound to do, still it cannot be assumed that the money was so paid voluntarily. It must be deemed to have been paid under the compulsory order of the court. That order was erroneously entered; the court had no power to make it. It assumed jurisdiction over moneys raised by virtue of the process of other courts. It not only commanded the sheriff to pay into court all moneys raised upon the execution issued out of the Supreme Court, but also all moneys raised by virtue of executions out of the Circuit Court and Court of Common Pleas. The sheriff, by paying the money into court in obedience to that order, cannot be deemed to have made the admission, much less the return, that the whole or any part of the fund was raised by virtue of the execution issued out- of the' Supreme Court.

And by the lists of articles sold by virtue of the several writs, which are exhibits in the cause, it appears that the property was not all levied upon, and the moneys made upon the same executions; but, on the contrary, that certain goods were levied on and sold, and a certain amount of money made,by virtue of each execution, in a specified order of priority* That under the Osborne execution, there was raised by sale $61.18; under the Woodruff execution, $378.27; and under the execution of Chapin and others (the defendants in error) there was made only $25.65. So that it appears affirmatively from the evidence that the money paid into the Supreme Court, in obedience to the compulsory order of the court, was principally made not upon an execution issued out of that court, but upon prior executions issued out of other courts. The order was improvidently entered. It exceeded the authority of the court.

Upon this ground, as well the rule directing the sheriff to pay into the Supreme Court the moneys raised upon the prior executions issued out of other courts, as also the final order of the court thereon, is erroneous, and must be vacated and set aside.

Judgment below reversed unanimously.