Carpentier v. Willett , 18 How. Pr. 400 ( 1860 )

By the court—Hoffman, Justice.

The main question is, what is the effect of the omission of the justice to declare in his judgment that the defendant was subject to arrest and imprisonment ? The 50th section of the act of April, 1857 (vol. 1, p. 720; Howrrd’s Code, 98), entitled, “ an act to reduce the several acts relating to the district courts in the city of New-York into one act,” applies to the case. It directs that “ 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.”

It deserves notice in explaining the intent and force of this enactment, that in the old act of 1813 (2 R. S. 376, § 98), a provision was made by which, in certain cases, an execution could go against the person, after an inquiry into certain facts had subsequent to the judgment. But yet the promo appears to enable the defendant to guard against this being done ex parte, by claiming an exemption.

Without however determining this point, or more fully entering upon the meaning of that provision, it is important to observe, that by the 30th section of the act to abolish imprisonment for debt, &c., of April the 26th, 1831, it was provided, “ that no execution issued upon any judgment rendered by any justice of the peace, upon any demand arising upon contract, express or implied, or upon any other judgment founded upon contract, whether issued by such justice, or by the clerk of the county, shall contain a clause authorizing an arrest or imprisonment of the person against whom the same shall issue, unless it shall be proved by the affidavit of the person in whose favor such execution shall issue, or that of some other person, to the satisfaction of such clerk or justice, either—

1st. “ That the person against whom the same shall issue, has not resided in this state for the space of thirty days preceding,” &G.

The other cases are then enumerated in which the execution against the body may be allowed.

These provisions appear to allow of evidence being given to satisfy the justice after judgment, and ex parte.

The 16th section of the act of April, 1857, first referred to, specifies the cases in which a warrant of attachment may issue to arrest the defendant in commencing the action. They include the case of an agent receiving money in a fiduciary capacity and converting it, and the case of a disposition of property with an intent to defraud his creditors, and also, when the action is for the recovery of damages (in a cause of action not arising on contract), and the defendant is not a resident of the county. The language is similar to some of the provisions of the Code.

Unless the defendant Doughty received the money for which judgment; was obtained, in a fiduciary capacity, he was not liable originally to.an arrest on anything appearing in the case. And I apprehend that an execution could only be allowed. against the person, where the defendant could originally have been arrested.

The 25th section of the act provides, that when the defendant has been arrested, an adjournment cannot be had for more than forty-eight hours without his consent, and an adjournment for a longer time discharges him from such arrest; but the action may proceed, notwithstanding, and the defendant shall be subject to arrest on the execution in the same manner as if he had not been discharged. And by the second subdivision of section 52, as to the form of execution, “ if it be a case where the defendant may be arrested, it may direct the officer, if sufficient property cannot be found to satisfy the ■ judgment, that he arrest the defendant, and commit him to jail, until he pay the judgment, or be discharged according to law.”

There is not in the statute any provision similar to such as I have referred to in previous acts, for an inquiry into facts subsequently to a judgment, to justify an arrest. There is in the eighty-first section a positive repeal of every law or rule in any case provided for by the aet, or inconsistent with its provisions ; and no law or rule is to be deemed retained because it maybe consistent with the provisions upon the same subject in the act, saving rights existing or accrued, or proceedings already taken.

It appears to me that the enactment in question has assigned to the justice trying a cause under it, as part of his judicial duty and office, the obligation and necessity of passing upon the question of the defendant’s liability to an arrest, as definitely as upon that of his liability in the action, and to embody his judicial conclusion in his judgment. If the defendant has been originally arrested, upon grounds apparently sufficient, he may have upon the trial the opportunity of disproving them, and showing their insufficiency. If he has not been arrested, still more important and more reasonable is it, that he should have the opportunity of shaping his defence to this point also, upon the trial; of having it determined upon the evidence there given, and the case there made, and of having the right to review a judgment against him on this point, as well as on any other, by his appeal.

We are bound to assume that the justice ordered the execution against the person on the ground of the money being received in a fiduciary capacity. There was nothing else in the facts stated in the affidavit, Avhieh could have warranted it, and yet that question would be open to serious doubts, and might have been decided differently on the appeal had it been brought up.

The decision of the point of the subjection to arrest was part of the justice’s judicial labor and duty. When he gave judgment on the 12th day of November, he had not made up his mind (as we are justified in assuming) upon this point, and perhaps it had not been suggested that the defendant was liable to arrest. “ There can be no judgment even by legal implication, either in substance or in form, till a judicial conclusion is made by the justice.” (6 Hill Rep. 41.) Equally clear is it, that there was no judgment stating that the defendant was subject to arrest made on the 12th of November, and that the order made the next day on an affidavit, was not a judicial conclusion on the case tried before the justice. He had tried the case on,the 12th day of November. His judicial action on what he had tried was complete. On this particular subject he had reached no result judicially when he gave judgment.

It seems to me that the letter, the spirit, and the apparent object of the enactment referred to, all declare the statement in the judgment to be a judicial act, essential to the right to arrest, and not merely ministerial and attendant upon" a judgment. The cases of Watson agt. Davis, 19 Wend. R. 371; Young agt. Runnel, 5 Hill Rep. 60; Hull agt. Tuttle, 6 Hill Rep. 38 ; and Sibley agt. Howard, 3 Denio Rep. 72, appear to me to warrant this conclusion. What was done on the 13th day of November was done when the justice, as to that cause, • was, for all judicial power, functus officio, and his act was void, not merely irregular. The question as to a statute being directory or mandatory does not arise.

25. The next question is, has the sheriff a right to avail himself of this matter as a defence to the present action ?

It seems to me, that the cases cited hy the defendant’s counsel, and particularly that of Phelps agt. Barton (13 Wend. Rep. 68), settle this question fully in his favor.

So in Constant agt. Chapman (2 Queen’s Bench Rep. 771), it was expressly decided, that when the marshal of the prison was sued for an escape, the defence was open to him that the party was not legally in custody at the time of the escape, and the case goes far to determine that receiving a prisoner with knowledge of the facts showing the illegality, is not enbugh to charge the marshal, though he detains the prisoner against his will, which would have been unlawful.

The view thus taken, disposes of the necessity of examining any of the defendant’s exceptions to the rulings of the judge.

There are three exceptions of the plaintiff to be noticed.

The admission of the original entry of the judgment indorsed on the summons, was in our opinion proper. The entry is the judgment, and from that" the clerk makes in his docket the entry required by section 59, subdivision 8, page 723.

The court admitted in evidence the undertaking given on the appeal to the court of common pleas, and also proof of the service of such undertaking oh the defendant, to which exceptions were taken.

The sufficient reply to this is, that the court orders the complaint to be dismissed, because the judge should have done so on the trial, and orders it on the sole ground that the judgment of the justice does not state that the defendant was liable to arrest and imprisonment, and the case (under the stipulation) is to be altered so as to show that a dismissal was ordered at the trial, and that the plaintiff then excepted.

The complaint must be dismissed with costs.