Fisher v. Nash

Laughliu, J.:

■ A warrant of attachment was duly issued herein against the property of the defendant, a non-resident of the State, on the 29th day of October, 1898, and on the same day placed in the hands of the sheriff of Oneida county for execution. The sheriff having been informed that the appellant, a resident of said county, held a policy of life insurance belonging to the defendant, duly applied .to her, pursuant to the provisions of section 650 of the Code of Civil Procedure, for a certificate as to the amount, nature and description of the property of the defendant held, by her. The appellant on the same day furnished a certificate which was quite indefinite, and later on made contradictory statements concerning the same.

On the 15th day of December, 1898, the county judge of said county, on application of the plaintiff, granted an order for the examination of the appellant before a referee, pursuant to section 651 of the Code of Civil Procedure.

The appellant appeared before the referee, but, on the advice of counsel, she declined to answer questions which would have been material and relevant' had the warrant of attachment been still in force. On the 29th day of December, 1898, on proof of such refusal on the part of the appellant, the county judge made an ■order requiring her to show cause before him, on the 3d day of January, 1899, why she should not be punished for contempt. On the return of this order the appellant raised the objection in writing that the court had not jurisdiction, on the ground that the plaintiff had failed to comply with section 638 of the Code of Civil Procedure, which requires that the summons shall be personally served upon the defendant within thirty days after, the granting of a warrant of attachment, or that the service thereof by publication shall be commenced within that time, notwithstanding this objec-. tion, the appellant was declared in contempt, and. it was adjudged that her misconduct was calculated to, and really did defeat, impair, impede and prejudice the rights of the plaintiff; and it was ordered that she pay to the plaintiff, or her attorney, a fine of twenty-five . dollars, and in default thereof that she be imprisoned in the county jail until payment should be made as required by the order.

The plaintiff’s failure to comply with section 638 of the Code of Civil Procedure rendered the warrant of attachment void before the making of the order which the appellant failed to obey. The summons had not been personally served and no order had been obtained for its service by publication. • (Code Civ. Proc. §§ 416, 638; Blossom v. Estes, 84 N. Y. 614; Taylor v. Troncoso, 76 id. 599; Mojarrieta v. Saenz, 80 id. 548; Kieley v. Manufacturing Co., 147 id. 620; Corn Exchange Bank v. Bossio, 8 App. Div. 306.)

• When the jurisdiction of the court was thus challenged it was incumbent on the plaintiff to show compliance with this section of the Code. ■ (Blossom v. Estes, supra; Robinson v. Columbia Spinning Co., 31 App. Div. 241; Van Camp v. Searle, 19 Hun, 134.)

■The examination of a third party, authorized by section 651 of the Code of Civil Procedure, is in aid of the attachment, and it is essential to the validity of the order that there be a valid existing warrant of attachment outstanding in the case. The warrant of attachment having previously become void, the appellant’s failure to obey the order could not. have defeated, 'impaired, impeded or prejudiced a right or remedy of the plaintiff in this action, and the county judge was without jurisdiction, and without proof of the facts essential to justify the making of the order appealed from. (Code Civ. Proc. §§ 14, 2266, 2281, 2283 ; Fall Brook Coal Co. v. Hecksher, 42 Hun, 534; Boon v. McGucken, 67 id. 251, 259, and cases cited.)

The order appealed from should be reversed, with ten dollars costs and disbursements.

All concurred:

Order adjudging the appellant, Leonora Stilwell, guilty of contempt and punishing her therefor reversed, with ten dollars costs and disbursements.