Whiting v. Putnam , 16 Abb. Pr. 382 ( 1863 )

Brady, J.

By the 16th section of the act of 1857,—to reduce the several acts relating to the District Courts in the city of New York into one act,—a defendant in an action commenced in one of those courts may be arrested by warrant where he has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; and, by section 50 of the same act, when a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, it must be so stated in the judgment, and entered in the docket. In this case, the defendant .Gardner was not arrested by warrant, but allegations were made in the complaint that the debt was fraudulently contracted by reason of certain representations made by him, and that the plaintiff was ready to prove the fraud charged. The justice having found in favor of the plaintiff, stated in the judgment, “ Defendant liable to arrest and imprisonment;” and upon the docket is entered these words, “ Judgment for plaintiff, $70.02; $12,57 extra costs, against both parties; defendant Gardner liable to arrest.”

The defendants were sued as partners, but the process was served upon the defendant Gardner only. Whether the allegations of fraud were proved, or not, does not appear. We are to presume, however, that they were proved, inasmuch as the justice has found them to be true by his finding that the defendant Gardner was liable to arrest. If it were otherwise, the defendant should have appealed, and reversed that judgment. ' We cannot reverse the judgment in effect by discharging the defendant from arrest under the execution. Whether the allegations of fraud were necessary in the complaint is not a question to be considered on this motion,—the justice having found that the defendant was liable to arrest and imprisonment.

It may have been upon the complaint or upon other testimony ; but having so adjudged, as before stated, we cannot on a motion like this subvert the judgment. The defendant not having appealed, has acquiesced in the judgment, and must take the consequences. Such is my view of this question. The same answer must be given to the alleged irregularity in the service of the summons. We cannot set aside such a judgment for irregularity, nor can we do so upon the ground that the court had not jurisdiction, unless such an objection was taken at the trial, and then only on appeal.

The process against the person of the defendant Gardner was authorized, therefore, by the record, and cannot be set aside. I think, however, that the questions presented on this motion being novel, no costs should be awarded against the defendant.