Crouse v. Wheeler

The original supplementary order to examine the judgment debtor, in this case, was made by Judge Moegan, and was ordered to be executed, and the examination taken before a referee in the county of Wayne, in which county the debtor resided, and where the execution had been issued and returned. The examination took place, and a report thereof, and of the entire testimony taken by him, was made by the referee to the judge who issued the order; and thereupon he made another order for the defendant to show cause before him, at his chambers, in Syracuse, on the 18th day of December, 1866, why the defendant should not pay the judgment and costs of the proceeding. Upon this day the counsel for both parties appeared before the judge, at his chambers, and, after hearing them, an order was that day made at chambers, in Syracuse, by Judge Moegan, that the defendant pay the judgment and costs of the proceedings within ten days, or, in default thereof, that an attachment issue. From this order an appeal is taken to this court.

The counsel for the defendant insists that upon this appeal the whole merits of the case are open to review, and he argues that there is not evidence sufficient to warrant the *345issuing of the order. He is probably right in claiming that this is the rule, but ! do not think the facts in this case warrant the conclusion he seeks to establish. On the contrary, the evidence seems to me to disclose a very bold and manifest attempt to conceal and convey out of reach money very clearly shown to have been in the defendant’s possession, or entirely within her control, at the time of her examination. At any rate, in a case disclosing such very singular and suspicious features, we should hardly feel justified in overruling the decision of the justice before whom the matter came for the exercise of his judicial judgment. It must be a very different case from this which would require or authorize us to interfere on this ground.

The only question then is, whether the judge had the power to make the order of Dec. 18tK The counsel for the defendant insists that he had no jurisdiction to make an order requiring the defendant, who resided in Wayne county, to appear and show cause before him in Onondaga county, or to make any order out of that county or the seventh district. He does not deny the power to make the order for the examination in Wayne county, but he claims that the proceeding having been commenced in that county, it must be continued there, and that the justice issuing the order must, if any further proceeding is taken or order granted, make it returnable before himself in Wayne county, or before some judge or justice in that county or district. There is no case yet reported that has decided anything to this effect, either directly or by implication. It is conceded that a judge can grant an order for the examination of a judgment debtor anywhere in the state, and irrespective of the debtor’s residence. The only restriction is, that the examination must be in the county to which the execution was issued. This is all the privilege the judgment debtor has. Where further proceedings are to be had, they are (or rather they were before the amendment of the last winter) to be had and taken before the judge who issued the original order. This is provided for by the 297th section of the Code, which declares that the judge (that is, the judge who issued the *346supplementary order) may order any property of the judgment debtor, in the hands either of himself or of any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment. The same judge appoints a receiver, and this he can do within his own district, and entirely irrespective of the debtor’s residence. The power to order these examinations, and to make all orders intermediate and final, is a special statutory authority conferred upon the justices of the supreme court as such, and to be exercised at chambers; and the power to grant chamber orders is unrestricted save in some special cases, of which this is not one.

In Webber agt. Hobble (13 How. 382), Judge Smith decided, at special term, that, after supplementary proceedings have been duly instituted, the jurisdiction of the justice remains until the examination of the debtor is completed, and all orders made by the judge, in respect to the property of the judgment debtor or otherwise, are fully executed. The object of the Code in instituting this mode of proceeding, as is well known, wa's to supersede the necessity of a creditor’s bill in the court of chancery, and the remedy was intended to be co-extensive with that mode of proceeding.

The several provisions should therefore, as Judge Smith says, be liberally construed, and so as to effect that object.

But again, it may be said that the order appealed from was made upon a motion requiring a notice, and, as the venue in the action was in Onondaga county, the motion was, by subdivision 4 of section 401 of the Code, properly made in the same county.

It may be added that, at the last session of the legislature, an amendment was made to the 292d section ef the Code, requiring the judge who grants the supplementary order to designate some judicial officer within the judicial district in which the judgment debtor resides before whom farther proceedings shall be had. This is to be deemed, I think, by a clear implication, a concession that, but for this restriction, it was and always had been within the jurisdiction and power of the judge making the order to continue *347and consummate the proceeding before him, by any order necessary to conduct it to a final determination and execution. If it were to supply a defect in the law, or create a limitation previously unknown, the legislature must have supposed the necessity for it existed. ■ I see nothing in this amendment in the nature of a declaratory act; a restriction is now imposed which did not before exist.

The order granting the attachment in the alternative was right. The defendant was ordered to apply specific property, and disobedience to it was a contempt, and punishable as such by the judge who made the order. (Kearney's Case, 13 Abb. 487.)

I think the order appealed from should be affirmed, with costs.

Foster, J., dissented.