Fredericks v. Niver

Learned, P. J.:

"We are unable to give-to section 298 of the- old Code the construction put upon it by the learned justice. It requires the filing and recording of the order appointing a receiver in the office of the clerk of the county where the judgment-roll is filed. And it then requires the filing and recording of a certified copy of the order, in.the office of the clerk of the county in which is situated any real estate of the debtor sought to be affected, and also in the office of • the clerk of the county in which the debtor resides, before the receiver shall be vested with any real property.

Now where the real property is situated in the same county in which the debtor resides, it is plain that it could not be necessary to file and record such a certified copy twice. And so when the property is situated in the same county in which the debtor resides, and which is also the same county in which the judgment-roll is filed, the filing and recording of the order once, is all that is needed.

The very words “a certified copy” show that the filing and recording spoken of were to be in some county, other than that in which the judgment-roll is filed and in which the order of appointment is first to be filed and recorded. It would be absurd that a county clerk should certify to himself a copy of an order recorded in his own office, and then file and record a second time that certified copy.

The object is, that the examination of titles shall be facilitated ; that land shall not be affected by the appointment of a receiver, without having the record of such appointment in that very county where the land lies; and, for further protection, that such record shall also be where the debtor resides.

But when the judgment-roll is already in that county and the order has been already filed and recorded there, the end has been accomplished. To give any other construction to the section would be to require a useless ceremony. Such a construction should not be given if possible. It seems to ns that the section, as we construe it, is in harmony with the general system of docketing judgments, under which a certified copy of the docket is sent to any county where the plaintiff desires to have a lien on real estate;

The plaintiff also urges that even in the view taken by the learned justice, the plaintiff should have been allowed to go on with his case in respect to the personal property. This is evidently correct. Probably the learned justice overlooked the fact, that the complaint concerned personal as well as real property.

These views may render it unnecessary to consider the other point raised on this appeal.

But we are of opinion that the motion to compel Miller to pay the costs as a person beneficially interested in the recovery was premature ; in that it was made before the judgment for costs against the plaintiff had been perfected. (Sec. 3247.) This is the more evident as this was an equity action, and it does not appear, that, at the time of making this motion, the court which had tried the case had awarded costs' to any one. (Sec. 3230.)

The judgment must be reversed, and a new trial awarded, costs to abide' event, an'd the order awarding costs against Miller reversed, with ten dollars costs and printing disbursements.

Bocees, J.:

This construction is in direct conflict with the express words of the statute. I think it judicial legislation. It declares what the statute should be, disregarding what it is.

Present — Learned, P. J., Boardman and Bocees, JJ. ■

Judgment reversed, new trial ordered, costs to abide event.