Ammidon v. Wolcott

15 Abb. Pr. 314

Opinion

By the Court.

Footnotes

•

*—Hogeboom, J.

Three principal objections are made by the defendant to the order of Justice Leonard, of the 4th of February, 1860, adjudging him to be in contempt.

1. That the order for the examination of the party was returnable before one of the justices of this court, instead of the judge making the order. This question is disposed of upon authority. It is held to be untenable. (Code, §§ 27, 292; Dresser a. Yan Pelt, 15 How. Pr., 19; Bank of Genesee a. Spencer, Ib., 412.) The defendant having neglected to object to the order on that account, on the return-day thereof, and having subsequently moved to vacate the plaintiff’s proceedings for irregularity, which motion was denied, and the order thereon being unappealed from, he must be deemed to have waived the objection or acquiesced in the decision against him. (Viburt a. Frost, 3 Abbotts’ Pr., 119.)

2. It is objected that the proceedings have not been regularly continued, from the granting of the first order down to the order adjudging the party in contempt, and therefore that the latter order has not a solid foundation upon which to rest. The facts appear to be these. The order for the examination of the debt- or was returnable on the 23d of December, 1859. Instead of submitting to an examination, he appeared on that day and obtained an order to show cause why the proceedings should not be set aside and vacated; and, among other reasons, for the reason that he was not a resident of the city and county of New York. This motion was heard, and was denied, on the 10th of January, 1860, and the defendant further ordered to appear on the 14th of January. This order was served only on defendant’s attorney, and the defendant failed to appear. His default was certified by the judge, and on the 16th of January, the same judge made a further order for his appearance on the 19th of said month, which order was personally served on the defendant, and he failed to appear. On the return-day of that order, the same judge made a further order on the defendant to show cause, on the 21st of January, why an attachment should not be issued. No cause having been shown, an attachment was issued on the last-mentioned day; since which time it is not claimed that there has been any hiatus in the proceedings. I am of the opinion that the proceedings before Judge Leonard were sufficiently continuous to justify the final order. The defendant was in court on the return-day of the first order, and his examination was suspended by his own consent and in consequence of his own action. He was also in court on the motion to set aside the proceedings; and .that motion having been denied, he could have been forthwith examined. His examination was adjourned to a subsequent day, which the judge had a right to do. That order was served on his attorney, and the •defendant made default. That service was probably sufficient; but if not so, the defect was cured by the service of the order •of the 16th of January. It was not important that this latter order should bear date on the return-day of the preceding one. It was, in fact, founded upon it and substantially recited it, and was issued in consequence of the default of the defendant to appear on the previous order, which default was certified by the judge.

3. The remaining objection, and that on which the defendant principally relies, is, that on being brought up on attachment for the contempt, he did, in addition to the answers to the interrogatories filed for the purpose of proving the contempt, offer to show that at the time the execution was issued and returned, he did not reside in the city and county of Hew York. The judge rejected the evidence, on the ground that the question had been already adjudicated by him on the motion to set aside the proceedings. I think the decision of the judge was correct, upon the ground on which it was placed by him. It will be recollected that it was the same judge who conducted all the proceedings subsequent to the first order, and the order to show cause why the proceedings should not be vacated. It could not be either necessary or proper for him to re-examine this question at every step of the proceedings. He had decided the question upon affidavits, in the very shape in which the defendants chose to present it, and the motion could not, with propriety, havé been renewed. It is said that the order denying the motion was appealed from. If so, and not yet heard upon appeal, the defendant should have procured a stay upon the proceedings supplementary to execution, until that question was decided. It is not to be presumed that, in a proper case, such a stay would not have been granted. I think, for the purposes of this case, the question of residence—decided upon the motion—must be considered in the same light as if the evidence had been introduced on an oral examination Before the judge, on inquiring into the contempt. The various steps before taken were all parts of one proceeding, having one common object—to wit, the discovery and application of the defendant’s property to the payment of the plaintiff’s debt; that the question of jurisdiction had, for all the purposes of that proceeding, been deliberately settled upon a full hearing of the parties, and that it was not open for further examination, upon a mere collateral issue as to the point whether the party was guilty of a contempt. Judge Clerke granted the original order upon an affidavit, conferring jurisdiction; and if that question was open to contestation afterwards, it had been re-examined and decided by Judge Leonard himself. This is not the case of a trial in court upon issues joined, but an inquiry made by the judge, in a summary way, to ascertain, to his satisfaction, whether the defendant had violated his order.

The order appealed from must be affirmed, with ten dollars costs.

Present Sutherland, Bonnet, and Hogeboom, JJ.