Arctic Fire Insurance v. Hicks , 7 Abb. Pr. 204 ( 1858 )

By the Court.^*—Ingraham, J.

—If the order for the debtor to appear in the supplementary proceedings was returnable on Sunday, it was not a contempt on his part not to appear on Monday: the order was a nullity. The objection that the affidavit was not served with the order should have been taken on the return of the order. He had no right to disobey the order for that cause. The next order, for the 19th, made by Judge Clerke, appears to have been founded on the previously served affidavits. The defendant was in contempt for disobeying it. Even if it was erroneous, he had no right to disregard it. The matters he offered on the return of the attachment may be sufficient to purge the contempt, or, if not, to excuse him to some extent, and thereby reduce the fine to a nominal amount, but it afforded no reason for denying the motion. The order appealed from should be affirmed.

* Present, Davis, P. J., and Clerke and Ingraham, JJ.