Barnett v. Lewinsky

Per Curiam.

Section 2437 of the Code authorizes a warrant of arrest “upon proof entitling a judgment-creditor to an order under either of the last two sections; and also proof by affidavit to the satisfaction of the judge, that there is danger that the judgment-debtor will leave the State or conceal himself, and that there is reason to believe that he has property, which he unjustly refuses- to apply to the payment of the judgment.” The two sections of the Code here referred to relate to an order for examination of a judgment-debtor before return of execution (§ 2436) and after return of execution. (§ 2435.) The section further provides that “ the judge may, instead of making an order, issue a warrant under his hand, reciting the facts, and requiring the sheriff of any county, where the judgment-debtor may be found, to arrest him and bring him before the same judge, or before another judge, if the case is one where the warrant must be returnable to another judge.” From this it appears that the warrant of arrest must contain, among other things, a recital of the facts conferring jurisdiction upon the court to entertain the proceedings, namely, the facts sufficient to bring the proceedings within the requirements of section 245.8 of the 'Code. t

The warrant of arrest is peculiar in another respect. It requires that the judgment-debtor shall he arrested and brought “forthwith before the court.” It fails, however, to specify for what purpose he is to be brought. A man arrested should be informed why he is taken into custody,’ and not merely referred to a section of the Code of Civil! Procedure. The warrant, in directing the sheriff “to bring: him forthwith before the court or judge thereof,” should state that it is for the purpose of examination about his property. >

The warrant further directed the sheriff to- hold him in bail in the sum of $500, to be given by one or more sureties, before his release according to section 2440 of the Code of Civil Procedure. Language in a warrant of arrest should be clear. If for any reason the judgment-debtor, when arrested, cannot practically be brought before one of the indues of the court within a few hours, it has been customary to release him upon bail. The security provided by section 2440, however, is security not to be given until after “ his examination or other proof.” If possible, he is to be brought directly before a judge and examined for the purpose of ascertaining whether the security provided for by section 2440 is to be required of him.

The affidavits upon which the warrant was granted are of very doubtful sufficiency; but, without passing upon them, the order appealed from is reversed with ten dollars costs and disbursements, the warrant of arrest is vacated and the judgment-debtor discharged.

Present: Seabuby, Guy and Whitney, JJ.

Ordered reversed with ten dollars costs and disbursements, warrant of arrest vacated and judgment-debtor discharged.