Sumner v. Osborn

The defendant’s case falls within the provisions of section 572-' of the Code of Civil Procedure. The action was one for false imprisonment, and the order of arrest was granted by a justice of this court. The defendant Osborn put in 'no answer, and his-time to answer expired in 1877, and no judgment was entered for over a month after it., was within the plaintiff’s power to enter it. The defendant Osborn was in actual confinement in the common jail of Onondaga county,, and Justice Noxon, one of the justices of this court within that county,, upon due notice, made the order discharging him from custody. In this particular case the rule that all motions in an action must be-made in the district or in a county adjoining the district in which the-action is triable is abrogated. The motion may be made before a.. *15judge within the county where the defendant is in custody. No-reason was shown why the order of arrest should be used to keep the defendant in confinement under it, rather than upon an execution upon the judgment. If execution had been issued the defendant could have been released upon an assignment of his property. This section was passed expressly to prevent the continued imprisonment of persons under orders of arrest by a failure to enter judgment and issue execution thereon.' The right of the imprisoned defendant does not depend upon the fact that the plaintiff or his-attorneys knew of the actual custody of the defendant. It wholly depends upon the fact that the plaintiff neglected to enter judgment within one month after he could have done so.

The order should be affirmed, with costs and disbursements.

Order affirmed, with costs and disbursements.