Hinds v. Canandaigua & Niagara Falls Railroad , 10 How. Pr. 487 ( 1855 )

By the court—Johnson, Justice.

The objection made by the defendant’s attorney was well taken, and the proceedings should have been dismissed by the county judge. The Code is not applicable in the case of a judgment aga.nst a corporation. Section 292 provides for an order of this description, when an execution against the property of the judgment debtor, or any one of several debtors in the same judgment, issued to the sheriff of the county where he resides, or if he does not reside in the state, to the sheriff of the county, where a judgment roll is filed, is returned unsatisfied in whole or in part. This evidently refers exclusively to a judgment against a natural person who has, or is capable of having, a residence in the common acceptation of that term. All the provision^ of this section, in reference to the appearance and examination of the defendant, and compelling him to appear, and punishing him for contempt, look in the same direction. It is necessary, in order to give the judge jurisdiction to issue the order, and entertain proceedings under it, that the plaintiff should show, by affidavit, that he has issued his execution to the sheriff of the county in which the defendant resides; or if the defendant is a non-resident of the state, that must be shown; and then it must appear that the execution has been issued to the sheriff of the county in which the judgment has been docketed. A corporation, being a mere artificial being, can have no residence in any legal sense any where; and this jurisdictional fact can never be shown in the case of an execution against such a defendant. It was not shown in the present case, nor could it be.

Provision is made by § 294 for an order requiring a corporation, or any officer or member thereof, to appear and answer, where it is shown, by affidavit, that such corporation has property of the judgment debtor, who is proceeded against, or is indebted to him.

This provision, in reference to the order requiring the appearance of a corporation in that particular case, shows, I think, that it was never intended that the provisions of § 292 should apply to. corporations. And where a corporation is required to answer in the specified case, § 296 provides that it shall be on the oath of an officer thereof.

The order provided by § 294 is, as we have held in another case, a proceeding in aid of the principal proceeding against the judgment debtor, and must be had in connection with it, and cannot be resorted to independently of any proceeding against such judgment debtor.

The provisions of the Revised Statutes, in reference to proceedings in equity against corporations, are still in force, except that the remedy is to be by action in form the same as other actions since the Code. Those provisions are expressly preserved by § 471 of the Code. It was held in Morgan agt. The New-York and Albany Railroad Co., (10 Paige, 290,) that the provisions of the Revised .Statutes, in reference to creditors’ bills against judgment debtors, did not apply to cases where the judgment debtor was a corporation. But that, in all such cases, proceedings must be had under Title 4, Chap. 8, Art. 2, of Part 3 of the Revised Statutes. (2 R. S. 463.)

If a creditor’s bill could not be upheld against a corporation, under the provisions of the Revised Statutes in reference to creditors’ bills, (2 R. S. 173, § 38,) it is clear, I think, that no such order as the one issued in this case, and the one made from which the appeal is taken, can be sustained. Resort must still be had against corporations, in such cases, to the remedies prescribed by the Revised Statutes against corpora tions before referred to.

The order appealed from is void, and the proceedings must •all be set aside, with costs of the appeal.