Levy v. Kirby

By the Court.

The affidavit upon which the order for the examination of the defendant was founded stated in substance the recovery of the judgment on August 13, 1870 ; that an execution upon the judgment was issued on the same day and returned wholly unsatisfied ; and that fourteen years afterward, and on June 11, 1884, another execution was issued upon the judgment and returned unsatisfied. In August, 1884, the order for the examination of the defendant was made. This order was vacated by the court, upon the ground that it was not obtained within the time provided by section 2435 of the Code of Civil Procedure. The second execution was regularly issued (§ 1337), and its return unsatisfied, justified the order for the examination of the defendants. Section 2435 provides that at any time within ten years after the return of an execution unsatisfied the creditor is entitled to an *71order requiring the judgment debtor to attend and be examined. I find nothing in the statute which justifies the conclusion that the creditor was limited to the term of ten years from the return of the first execution, in which to assert his right to examine the judgment debtor. As he was right in issuing the second execution, so he was entitled to proceed under it for the examination of the defendant, at the time he instituted the proceedings. There is no hardship in the case. It is suggested by the respondent’s counsel that the plaintiff’s remedy was by a creditor’s bill after the return of the second execution. That could not have been the intention of the framers of the law. The summary proceedings are a substitute for the proceeding by suit in equity. The order appealed from is reversed, with costs and disbursements.

Freedman, J,, concurred.