Wells v. Jones , 2 Abb. Pr. 20 ( 1855 )

Cowles, J.

By 2 Revised Statutes, 556, sections 36 and 37, the defendant was authorized to apply to “ any judge of the court” for the order of supersedeas here asked for ; and notwithstanding the provisions of section 401 of the Code, I think he may do so still, and make his application in the first district, although the venue in the action is elsewhere.

The right to apply for such supersedeas, under the Revised Statutes, as above stated, was an “ existing statutory provision” when the Code took effect, relating to the action in which such motion was made, was not “ inconsistent” with the Code, and in substance was applicable to the actions provided for in the Code. The right to apply for such supersedeas exists still, but by virtue of the Revised Statutes above, it being no where provided for in the Code. But it is a provision relating to the suit; and in the above view of it, is, by section 471, as it seems to me, excepted from the operation of section 401. Besides, I see no reason why it is not a “ proceeding” in the original suit, within the meaning of section 471, and so one of those “ proceedings” excepted by that section, since the authority for the proceeding is contained in part III, chapter 8, of the Revised Statutes ; and being so, is especially excepted by that section from the provisions in section 401 of the Code.

A good reason for such exception may be found in the fact, that when a party is imprisoned, and wishes to ask for a super-sedeas, if he is compelled to make his application in any particular county or district, he may, in many counties except this, be compelled to remain in jail, oftentimes for months, before “ any judge of the court” could be found to whom to make the motion. A construction which would or might operate so seriously in restraint of the liberty of the citizen, should not be adopted, unless the intent of the statute is too clear to allow of a different interpretation. Taking the above-mentioned sections of the Revised Statutes, and sections 401 and 471 of . the Code, all together, I think it obvious that the motion was properly made here. The making of that motion, the particular judge to whom, and the place where it should be made, are all left by section 471 where the Revised Statutes left them, just as the other class of proceedings in such sections were also thereby left, unaffected by part II. of the Code, also; this being a proceeding provided for specially by part III.

Chapter 8, of the Revised Statutes — the provision that the motion might be made to “ any judge of the court,” — was just as much an essential part of the proceeding as was the ability to make the motion at all within the meaning of the reservations in section 471 of the Code.

But while such is the intent and fair construction of section 471 of the Code, yet the order made in the motion is just as much subject to review, on appeal to the general term, as are motions made in foreclosure, partition, admeasurement of dower, and the various other classes of cases also specially excepted by the same section from the second part of the Code, and for the same reasons. The motion and the appeal are both regular.

This brings us to the merits.

The order of arrest was made January 2, 1852, and at the commencement of the suit.

The defendant was actually arrested January 6, 1852.

Judgment was perfected May 25, 1852.

His bail surrendered him November 25, 1853.

Order to exonerate the bail was made on notice to plaintiff, July 19, 1854.

Order to show cause why supersedeas should not be granted, made January 30, 1855.

No execution on the judgment issued, until February 10, 1855.

Supersedeas ordered February 19, 1855 — and the appeal from that order is the case before us.

The object of the arrest of a party on suit being commenced, is not to punish the defendant, but to insure his person to answer, in case of ultimate execution against his body; and that being the case, there is no reason why, if an arrest is granted in the first stage of the action, the plaintiff should not be held to proceed, and either issue an execution against his person, if the pleadings show it to be a proper case for such process, or be compelled to ask for such process, if application to the court is required, within a reasonable time after judgment.

The plaintiff caused the arrest to be made on January 6, 1852. In May succeeding he had judgment. The complaint alleged no fraud or other matter on which' an execution against the person could be issued, and the plaintiff was, therefore, if he wished to issue execution against the body, required to make special application to the court. He did not do so, but left the defendant from May, 1852, to February, 1855, in custody, under the original order of arrest. The Code has provided no way in which the defendant (after he has put in justification of bail, under the original order of arrest) can by any motion of his own, procure a discharge from the arrest; and as the plaintiff refused, or at least neglected to apply for bis execution against the person of the debtor, the only thing the defendant could do was to be surrendered by his bail into actual custody, have his bail exonerated, and then apply for a supersedeas of the order of arrest, after the proper time had elapsed. (2 Rev. Stats., 556, §§ 36, 37.)

Had the plaintiff applied, as he should have done, for execution against the person, the defendant could, on that motion, have controverted the plaintiff’s charges; and then the court, on a full consideration of the whole case, could have discharged the defendant, if the facts warranted; or if the plaintiff had caused his imprisonment under execution, he could have applied for his discharge under the Imprisoned Debtor Act. But none of these chances were afforded the defendant. Having succeeded in getting him arrested, so that he could have execution against his person, if the facts justified it, the plaintiff neglected to take any step under his judgment, from its rendition in May, 1852, until February, 1855 — and all this time keeps the defendant in custody, under the original order of arrest. Such a proceeding on the plaintiff's part I cannot regard otherwise than as in fraud of the law, and tending only to injustice and oppression. Having slept for nearly three years upon his rights, he awakes at last, only when the defendant, by this long and tedious process of surrender, by his bail, &c., has placed himself where ,he can ask the court to supersede the original order for his arrest; and the plaintiff now informs the court, when called upon to show cause why that order should not be superseded, that, after a delay of nearly three years, he has at the last moment issued an execution against the defendant’s property, and if the court will hold him in jail for two months longer, till his execution is returned, he will then ask the court to grant him an execution against his person.

The excuse is not sufficient, and the request cannot be granted. This long delay to proceed has been oppressive, and in fraud of the process of the court. The plaintiff had no right, if be wanted to resort to process against the person of the defendant, to hold him nearly three years after judgment, under that original order of arrest; and for such delay has forfeited all right to the favor of the court. He says he did not have notice of the surrender of defendant by his bail. Perhaps that is so; but he did have notice of the exoneration of the bail, which was based upon proof of the surrender having been made, and knowledge of the exoneratur almost necessarily, as one would suppose, carried with it knowledge of the surrender.

The order appealed from must be affirmed, with costs.

Clerke, J.

I am still inclined to the opinion, that this application is excluded from the operation of section 401 by the terms and spirit of section 471, and that the particular provisions contained in sections 36 and 37 of title 17, ch. 8, part III. of the Revised Statutes (2 Rev. Stats., 556, marg. p.), are not “ plainly inconsistent with the Code.” The defendant being in custody of the sheriff of this court, it never could have been intended by section 401 of the Code that he should be compelled to apply for relief to a justice in the western part of the State, after the action was determined by judgment, merely because the place of trial was there.