Edgerton v. Ford , 11 Abb. Pr. 415 ( 1860 )

By the Court.*—Sutherland, P. J.

The order of the general term was perfectly conclusive upon the justice who made the order at special term appealed from. He could not do otherwise than to deny the defendant’s motion to set aside the execution. That motion and this appeal from the order denying it, is but an attempt to get one general term to review the decision of another general term.

The order appealed from should be affirmed, with costs.

Bonney, J.

The defendant moved, at special term, to set aside an execution against his person, issued upon the judgment recovered in this action. The motion was denied, and defendant has appealed. The papers show that an order of arrest was made in this action, under section 179 of the Code, upon the ground that the defendant had been guilty of fraud in contracting the debt for which the action was brought. A motion to vacate said order was denied at special term. Prom the order denying that motion, defendant appealed, and the court at general term ordered “ that the said order be, and the same is hereby reversed without costs, on the defendant stipulating in writing, to be served on the attorneys for the plaintiffs within ten days after the service of a copy of this order on the attorney for the defendant, not to bring any action for malicious prosecution or false imprisonment; but should he neglect to give such stipulation within the time aforesaid, the said order is hereby affirmed.” The stipulation was not given; but the defendant insists that the condition in the order requiring it is illegal, unjust, and oppressive, and in violation of the statute, and that the order of arrest has been, by the decision and order of the general term, in fact, vacated, although said condition has not been performed. We cannot now amend or review the order made at a previous general term; hut only determine its proper construction and effect. The terms of that order are clear and explicit, and there can be no doubt as to its meaning. The required stipulation was not given, and consequently the order at special term, denying the motion to vacate the order of arrest, was affirmed, and said order of arrest remains in full force.

Upon what ground, then, can this execution against the person of the defendant be set aside ? The Code (§ 288) provides that execution against the person of a judgment-debtor may issue, if the action be one in which the defendant might have been arrested, as provided in section 179. In this action the defendant was actually arrested, under the provisions of section 179; and the court, at general term, has affirmed an order made at special term denying a motion to vacate such order of arrest. I do not see how it is possible to decide that this is not an action in which the defendant might have been arrested while he is actually under arrest, and the court refuse to vacate the order by which he is held. As there is no other question in the case, the order made at special term must be affirmed, with ten dollars costs.

Order accordingly.

* Present, Sutherland, P. J., Ingraham and Bonney, JJ.