People ex rel. Pease v. King , 9 How. Pr. 97 ( 1853 )

By the Court—Johnson, Justice.

The three appeals, one by the relator, and two by the defendant, may very properly be considered together.

First. The order discharging the defendant from the attachment was properly made. The attachment to appear and answer was not the proper one for the alleged offence. The alleged contempt was the non-payment of a sum of money directed to be paid. In such case the precept issues to commit directly. The process to appear and answer, is for contempts other than those for the non-payment of a sum of money. (2 R. S. 535, § 4 and 5 ; 2 Barb. Ch. Pr. 271; 1 Hoff. Ch. Pr. 429.) The Code does not prescribe the practice, and the provisions of the Revised Statutes and the former practice are to be followed. But had the attachment been regular, no contempt in not paying was proved aside from the excuse rendered. The order was to pay the money in satisfaction of the judgment, and not to pay it into court, or to the receiver, who is but the agent or officer of the court in which the judgment is docketed.

This was an order to pay to the plaintiff directly in satisfaction of the judgment. No demand by the plaintiff or by any one having authority from him was shown.

It is well settled that a person is not in contempt for not paying money to a person other than the one to whom it is directly payable according to the terms of the order, unless such person is expressly authorized by the person to whom it is payable to receive it. (2 Barb. Ch. Pr. 272; 1 Hoff. Pr. 430; Wilkins agt. Stevens, 19 Vesey, 117.) Paying to the party, and paying into court, or to a receiver, are different things entirely. The proof shows that the money was demanded by the receiver by virtue of the order requiring it to be paid toward the satisfaction of the judgment, and in no other way. That was the order served when the demand was made, and all the proceedings are based upon it. No contempt was therefore shown.

I think it may well be doubted whether such an order is appealable. The alleged contempt is one of that class denominated extraordinary contempts, in which the dignity of the court is principally concerned, and in which the party has only ■an indirect interest. The proceeding was never given as a remedy to the party, although he is frequently benefited by it, and is often thus enabled to obtain satisfaction of his demand when all other remedies have failed. It is rather a power conferred upon courts and judicial officers to enable them to protect and preserve their own authority and dignity. I can find no precedent for such a proceeding, where a party has been allowed to appeal from an order of this kind, the only ground ■of which is, that the court or officers have not manifested by the order a due regard for his or their authority and dignity, by means whereof a party to the action, but not to the proceeding, has possibly sustained an injury. But it is unnecessary to examine .this question, as we do not place the decision upon this .ground.

Second. The appeal by the defendant from the order directing him to apply this money in his hands toward the satisfaction of the judgment is well taken. The order was wholly unauthorized under the proof before the referee. The evidence clearly shows that this money in the defendant’s hands was claimed both by him and Woodworth to be the money ■of the latter. The county judge, in this proceeding, undertook to try and determine the lonafides and validity of Woodworth’s ¡purchase at the constable’s sale, and the validity of the judgments before the justice upon which the several executions were issued: in short, to determine in this summary manner whether the relator or Woodworth had the superior right to the proceeds of the property purchased by the latter at the constable’s sale. This he had no authority to do in this proceeding. Woodworth was in no sense a party. He was called as .a witness by the relator, and was not concluded by the order. Nor would the order, had the defendant complied with it, have afforded him any shield against Woodworth’s claim upon him for the money thus in his hands. It was never intended that the judge, under the authority conferred by sections 292 and 291 of the Code, should try and determine questions of this character, as is obvious by reference to § 299.

This case, it is true, is not within the language of that section, as the funds here were in the defendant’s hands at the time the order for the examination was made, and the examination had before the referee, but it is clearly within its spirit. (People agt. Hulburt, 5 How. Pr. R. 446.) This order must therefore be reversed.

Third. The order appointing a receiver was proper. It is just the case where a receiver should be appointed, in a proceeding of this kind, where the funds are in the hands of the defendant. If there is no dispute as to the ownership, and the money in the defendant’s hands is clearly his, no receiver is necessary, and none should be appointed, as in that case the proper order is to pay the money, or apply it directly in satisfaction of the judgment. This was the chancery practice before the Code. (Edwards on Receivers, 8.) But as the title to the fund in the defendant’s hands was disputed, the proper course would have been not to order it to be applied in satisfaction of the judgment, but to make an order restraining the defendant from paying it over to Woodworth or any other person, and to appoint a receiver. The duties of a receiver, in such a case, are prescribed by § 244 of the Code, sub. 5, which are, to apply for an order requiring the defendant to pay the money into court. When the fund is paid into court, all the parties can be heard, and if necessary to a proper disposition of the controversy, the court will order the receiver to bring an action on an issue to be framed to determine the disputed right, in a manner which shall conclude and protect all parties interested, or making claims upon the fund. This view harmonizes the various provisions of the Code, and tends to place the practice upon a footing consistent with the just rights of all parties and adverse claimants. The order discharging the defendant from, the attachment, and that appointing a receiver, are affirmed, and that ordering the money in the defendant’s hands to be applied toward satisfying the judgment reversed, with $10 costs of appeal to the defendant. No costs allowed to the relator.