Schieb v. Baldwin , 22 How. Pr. 278 ( 1862 )

Monell, J. (after stating the facts).

—It is objected, that judgment having been entered, the attachment is no longerdn force, and the property of the defendant cannot be seized under it. I am clearly of the opinion that the objection is well taken. The office of the attachment is to seize under it the property of the . defendant, “ as a security for the satisfaction of such judgment as the plaintiff may recover.” (Code, § 227.) Until judgment is obtained it is lawful for the sheriff to levy upon or attach any property or rights in action of the defendant in- his county. "When judgment is entered, “ the sheriff shall satisfy the same out of the property attached by him, if it shall be sufficient for that purpose,” 1st, by applying the sales of perishable property or of debts collected; and 2d, if any balance remain due, and an' execution shall have been issued, he shall proceed to sell under such execution so much of the attached property as shall be sufficient to satisfy such balance, &c. (Code, § 237, subd. 1, 2.) By another provision of the Code (§ 240) the defendant may, after appearance, procure the discharge of the attachment, by giving an undertaking to pay the plaintiff the amount of the “judgment that may be recovered against the defendant.” An attachment is denominated in the Code as a “provisional remedy,” and is embraced within the class of provisional remedies, such as “arrest and bail,” “injunction,” &c., all of which lose their power and efficacy with the judgment: the defendant must be arrested under an order of arrest before judgment, or not at all; and a new injunction must be contained in the judgment. The ample provision made by the Code to reach intangible propertyof a judgment-debtor, by a proceeding supplemental to the execution, furnished another reason why the' Legislature could not have intended to have extended the vitality of an attachment beyond the entering of judgment.'' The remedies are not concurrent, but succeed each other; '- the attachment holds the property for the execution. I cannot entertain a doubt that the attachment is spent, and becomes powerless the instant the judgment is entered.

The counsel who argued this question before me, having admitted at the close of the argument that at the time the sheriff applied to Downing for the certificate of the defendant’s property he held an execution issued upon the judgment, I am asked to decide whether, under this new fact, the plaintiff is entitled to the examination of the witness Downing. It does not appear whether the execution remains in the sheriffs hands, or has been returned by him. But this is immaterial. The provision of the Code, under which the application was made by the sheriff, declared that “ whenever the sheriff shall, with a warrant of attachment or execution against the defendant, apply to such officer, debtor, or individual for the purpose of attaching or levying upon such property,” &c., such officer, &c., shall furnish him with a certificate; and if he refuse he may be required to attend and be examined, &c. It was necessary, in my opinion, for the sheriff to disclose to Downing that he had an attachment or an execution against the defendant Baldwin, before he could require the certificate; and without such disclosure, Downing was justified in refusing to give it. Hence, inasmuch as the sheriff demanded the certificate under and only in virtue of the attachment, Downing cannot be considered to be in quasi contempt for refusing. The fact, however, being now admitted, that the sheriff had an execution in his hands at the time, I shall order, that unless Downing, on application of the sheriff, furnish the certificate required by the 236th section of the Code, he appear before one of the justices of this court, on the 20th day of January next, at 10 a. m., and be examined concerning such property as he may have belonging or due to the defendant.