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190, and Conway v. Hitchins, 9 Barb. S. C. R. 378.
In the first place, remedies are given to the judgment creditor, enabling him to examine the debtor in relation to his property, either generally or specifically, and to arrest him in certain cases. These remedies are provided under sec. 292, which runs as follows:
$ 292. When an execution against property of the judgment debtor, or of any one of the several debtors in the same judgment, issued to the sheriff of the county where he resides, or, if he do not reside in the state, to the sheriff of the county where a judgment roll, or a transcript of a justice's judgment, for twenty-five dollars or upwards, exclusive of costs, is filed, is returned unsatisfied in whole or in part; the judgment creditor, at any time after such return made, is entitled to an order from a judge of the court, or a county judge of the county to which the execution was issued, or a judge of the court of common pleas for the city and county of New York, when the execution was issued to such city and county, requiring such judgment debtor to appear and answer concerning his property, before such judge, at a time and place specified in the order, within the county to which the execution was issued. After the issuing of an execu- '. tion against property, and upon proof by affidavit, of a party or otherwisc, to the satisfaction of the court, or a judge thereof, or county judge, or any judge of the court of common pleas for the city and county of New York, that any judgment debtor,(residing in the county where such judge or officer resides, has property, which he unjustly refuses to apply towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place, to answer concerning the same: and such proceedings may thereupon be had for the application of the property of the judgment debtor towards the satisfaction of the judgment, as are provided upon the return of an execution. On an examination under this section, either party may examine wit
nesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. Instead of the order requiring the attendance of the judgment debtor, the judge may, upon proof by affidavit or otherwise, to his satisfaction, that there is danger of the debtor's leaving the state, or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath, and if it then appears that there is danger of the debtor's leaving the state, and that he has property which he has unjustly refused to apply to such judgment, he may be ordered to enter into an undertaking with one or more gureties, that he will from time to time attend before the judge as be shall direct, and that he will not, during the pendency of the proceedings, dispose of any portion of his property, not exempt from execution. In default of entering into such undertaking, he may be committed to prison, by warrant of the judge as for a contempt. No person shall, on examination pursuant to this chapter, be excused from answering any question, on the ground that his examination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution.
In the first place, the creditor, on the return of an unsatisfied execution against the debtor's property, issued to the sheriff of the county in which that debtor, or any one of several debtors on the same judgment resides, or, if such judgment debtor do not reside in the state, then into any county in which the judgment has been docketed, is entitled to examine such debtor concerning his property, as of course, and in all cases, except only on justices judgments, for less than $25, costs not included. A justice's judgment for a larger amount, duly docketed in the county court, ranks, in all respects, as a judgment of a court of record, as regards ulterior proceedings, and, in particular, those now under consideration.- Conway v. Hitchins, 9 Barb, S. C. R. 378.
Some discussion has arisen as to whether the sheriff is, or is not, obliged to wait, before making his return, the whole sixty days allowed by section 290, for that purpose, or whether he is at liberty to do so at an earlier period.
In Phelps v. Brooks and Sherwood v. Littlefield, 1 C. R. 85, it was held, by a county judge, on the authority of the old case of Cassidy v. Meacham, 3 Paige, 311, that supplementary proceed
ings cannot be taken under this head, before the lapse of sixty days from the issuing of the execution, although it should be actually returned by the sheriff sooner ; and two orders which had been granted under such circumstances, were quashed accordingly. This view has, however, been distinctly overruled by two other county judges, in the subsequent cases of Messenger v. Fisk, 1 C. R. 106, and Simpkins v. Page, 1 C. R. 107; and this latter view is distinctly and fully established by the cases of Livingston v. Cleaveland, 5 How. 396, 1 C. R. (N. S.) 54, and Engle v. Bonneau, 2 Sandf. S. C. R. 679, 3 C. R. 205—the one a decision of the general term of the supreme, the other of the superior court.
The order to examine the judgment debtor, cannot how-, ever be obtained, before the sheriff's return has actually been made. If applied for at an earlier period, the proceedings will be irregular, and the defect a fatal one.—Engle v. Bonneau, above cited.
In the recent case of Jones v. Porter, 6 How. 286, supplementary proceedings, consequent on an execution returned the day after its issue, and after the signing of the judgment, were sustained ; and this, although the initial order had been obtained, before the sheriff's return was actually filed, but after such return had been made and delivered to a messenger for that purpose, and in the belief that the latter had performed his duty, and that the return had already been duly filed, at the time when the application was made.
The court held that, in this case, as in others, fractions of a day will not be enquired into, (V. Blydenburgh v. Cotheal, 4 Comst. 418, 5 How. 200,) and that the proceeding so taken was valid; and the subject is fully gone into, and various cases are cited, tending to the conclusion that, even under circumstances of much less hardship, an amendment might have been permitted, allowing the return to be filed, nunc pro tunc, so as to sustain the subsequent proceedings.
In cases where the execution itself is irregular, as, for instance, when issued after five years from the entry of judgment without the leave of the court, supplementary proceedings under it cannot, of course, be sustained.-Currie v. Noyes, 1 C. R. (N. S.) 198.
The assignee of a judgment, who becomes such after the return of an execution unsatisfied, is competent to prosecute
proceedings of this nature, and to use the name of the original plaintiff for that purpose. See Code s. 121, Ross v. Clussman, 3 Sandf. S. C. R. 676; 1 C. R. (N. S.) 91. The nature of his interest must, however, appear upon any affidavit made by him in order to ground an application of this nature, or else the proceedings will not be sustainable.—Lindsay v. Sherman, 5 How. 308; 1 C. R. (N. S.) 25.
The application for an order of the above description, is ex parte.
It is evident that such application must, in all cases, be grounded upon an affidavit, showing the interest of the parties applying, and the facts, that a judgment has been recovered, and an execution issued, and returned unsatisfied ; proof of the latter fact especially, being necessary in order to confer jurisdiction. The form of an affidavit of this description, and also of the order to be obtained thereupon, will be found in the Appendix.
In McArthur v. Lansburgh, 1 C. R. (N. S.) 211, it was held that it is not necessary that such affidavit should specifically describe the execution returned unsatisfied, as an execution against property; the presumption will be that it is so.
In Conway v. Hitchins, 9 Barb. S. C. R. 378, above cited, it was likewise held that a formal allegation that the justice by whom the judgment in that case was rendered, had jurisdiction in the matter, was unnecessary. It was sufficient if the affidavit showed the facts conferring that jurisdiction, and that the judgment was correctly given.
It was also held, in the same case, that the ex parte allegation of the plaintiff, that the execution had been returned unsatisfied, was sufficient proof of such return, to authorize the granting of an order of the above nature.
It is self evident, though not expressly provided for, that copies of the foregoing papers, or at all events of the order, must be served upon the judgment debtor.
The fixing of the time and place for his examination, rests, as will be seen in the discretion of the judge granting the order. That discretion is, however, restricted as regards the latter, it being expressly provided, that the examination must take place within the county into which the execution was issued. The case of different judgment debtors, resident in different counties, and all requiring to be examined ; and also that of a judgment
against a non-resident debtor, executions on which have been issued into several counties, are left unprovided for. In the latter, it would appear to follow as a necessary consequence that such judgment debtor, if served with the order within the State, can be examined, and the order for that purpose ob. tained, in any county into which execution has been issued. In the former, it would seem that a separate execution must be issued into the county in which each debtor resides, and separate orders obtained for their examinations respectively; the wording of the first part of the clause, especially when read in connection with the somewhat analogous provision in sec. 391, seeming evidently to contemplate this form of proceeding.
In McArthur v. Lansburgh, 1 C. R. (N. S.) 211, before referred to, it was considered that, in cases where it appears affirmatively that an execution, or, as there, an alias execution, is outstanding and not yet returned, supplementary proceedings of the foregoing nature cannot be maintained; and also that where, under an alias execution, a levy had been made on property claimed by the defendant, the same will be the case.
The arrangement and details of the whole of this portion of the Code, are severely commented upon in the case of The People ex rel. Williams v. Hulburt, 5 How. 446; 9 L. O, 245; 1 C. R. (N. S.) 75. The application, in that instance, was made to a county judge, and it was held that, under such circumstances, every fact necessary to give jurisdiction to such officer, must, of necessity, be stated affirmatively on the affidavits, and that nothing could be presumed in favor of such jurisdiction : on which ground all the orders and proceedings in that matter were set aside, various omissions of this nature existing. It is evident from the views held in this decision, which is one of of general Term, that an application to a county judge, in any case not decided by him in his own court, is surrounded with difficulties at every step; and that, therefore, the wiser course will be to apply to a judge of the court by which the judgment has been originally rendered, in all cases, wherever practicable.
In a Note at 1 C. R. (N. S.) 79, it is stated to have been held, that a judge of the supreme court has no jurisdiction to make an order of the foregoing nature, on a county court judgment : and such would seem to be the natural conclusion from the wording of the section,