President, Directors & Co. of the Bank v. Spencer

I think the county judge had no power to grant the order appealed from. If the power exists, it must be found either in the provisions of the Code, or the judiciary act, by which his powers to grant orders in actions pending in this court, are conferred and defined; or in those provisions of the Code which give him jurisdiction to entertain proceedings supplementary to execution in such actions. By § 401 of the Code, it is provided that orders made out of court without notice, may be made by any judge of the court, in any part of the state; and they may also be made by a county judge of the county where the action is triable, except to stay proceedings after verdict. Section 403 provides that in an action in the supreme court, a county judge, in addition to the powers conferred upon him by this act, may exercise within his county, the powers of a judge of the supreme court at chambers, according to the existing practice except as otherwise provided in this act. By section 27 of chapter 470, of the laws of 1847, it is provided that every county judge within the county in which he shall have been elected, shall have power to perform all such duties as by the laws in force on the 12th day of May, 1847, might have been performed by the judges of the court of common pleas, or any one or more of them, at chambers or otherwise, when not holding court, or by any such judge being of the degree of counsellor of the supreme court, and acting as a supreme court commissioner. By the 20th section of the article of the Bevised Statutes, defining the powers of supreme court commissioners, (2 R. S. p. 280,) it is provided that no supreme court commissioner shall be authorized to grant any order to stay proceedings in any cause in which a verdict shall have been rendered.

If this proceeding supplementary to the execution is a proceeding in the action, clearly the county judge has no power to stay the proceedings in any stage of it, or for any cause. In the enumeration of bis powers in actions in this court, this power is expressly excepted by section 401 of the Code, and by the section of the judiciary act already cited, when read in connection with the provisions of the Bevised Statutes defin*415ing the powers of supreme court commissioners, which are by the judiciary act conferred on county judges. It is contended by the defendant that this exception in section 401, means that a county judge'shall not stay the entry of judgment or the issuing of an execution thereon. But I take it, the statute means what it says. I find no qualification of this express provision, and we have no power to make one. But if we had, there is nothing in the character of this proceeding to justify the qualification now contended for. The ordinary execution is issued to enforce the judgment, by procuring satisfaction out of the visible property of the debtor. It is conceded that a county judge has no power to stay the issuing of that process. If the debtor eludes it by concealing his property, or changing its nature so that it cannot be reached by that process, the law gives the creditor this process or proceeding, for the purpose of enabling him to search closer, and reach farther for the debtor's property, than the sheriff can with a common law execution. It is a cumulative remedy, a species of equitable execution which the law gives the creditor for the purpose of enabling him to procure satisfaction of his judgment. What reason, then, is there, why a county judge should be prohibited from staying a common execution which is not applicable to this proceeding ? But it is unnecessary to search for reasons, when we have the plain authority of the statute. I have no doubt that this is a proceeding in the action, as much as the issuing of .an execution, or a motion for leave to issue one, after the lapse of five years. It is said that it is a distinct, independent proceeding, and that it can be instituted only upon proof of new facts. The same is true of an execution issued after the lapse of five years from the rendition of judgment.

But if it is not a proceeding in the action, it is a special proceeding given and governed solely by chapter 2, of title 9, of the Code, which is entitled “ of proceedings supplementary to the execution,” and the power of the county judge to stay the proceedings, if it exists, must be found there. I find no such power in that chapter, and it is not claimed by the de*416fendaut that it contains any provision which confers the p.ower upon the county judge. Upon certain proof he is required to make an order for the debtor to appear and answer, he is authorized to take the examination or appoint a referee for that purpose, to enforce obedience to his orders by summary process as for contempts, to make an order appointing a receiver, and restraining the debtor from disposing of his property, and in case the examination shall disclose any property in the debtor’s possession, the judge may make an order for its application to the payment of the judgment. In short, all the provisions of this chapter look to one object, and that is a speedy consummation of the proceeding. To that end, the judge is directed to proceed, but he is nowhere authorized to stop. He has no discretion in the matter. To the suggestion that he has independent and original jurisdiction in this proceeding, and acts as a court of equity; it is a sufficient answer that he acts in all things as an officer of the court, and not as a court, so far as judgments in this court are concerned. He derives all his powers, as such officer, from this chapter, and he can do nothing for which he cannot find the authority there. If there is any power to interfere with the progress of these proceedings in actions in this court, it is vested in the court or its judges, and not in county judges before whom such proceedings may be pending. I think the order should be reversed.

Order reversed.

Note.—After the decision, in this case, which is reported, ante p. 14, was made, the county judge of Erie county, on the application of the defendant, made a second order staying the proceedings. The plaintiff appealed therefrom, and on argument at the Erie general term, held in November, 1857, before Davis, P. J., Greene and Marvin, Justices, the order was reversed. It was claimed on the part of the defendant, that the order should be sustained on the authority of the opinion reported at page 14. But the court adhered to the preceding opinion, and held that the decision in the 7th district was not in conflict with this; and that it was not open to the construction claimed for it on the part of the defendant. There is an error in the statement at page 14, ante, that the proceeding was before the county judge of Genesee. It should read “ Erie ” instead of “ Genesee.”