Clark v. Dakin

5 Sarat. Ch. Sent. 24

• Court: New York Court of Chancery
• Decided: August 5, 1845
• Status: Published

Opinion

Siotso-n for appofetoe-nt of a. receiver ⅛ a creditor’* suit» The defendant objected that the execaífota, whiefe was issued to the cemn-iy of Konrse, was returned to tfee-ciedt’s-office in ■ "Utica, instead of the clerk’s office ai Geneva. The-c&aracel» ; ior inclined 4© fche -opinfett that ⅛⅛ was a mere matter of form, which «vea the supreme court would not -noi-ioe wpoa an application i@ set aside ⅛® reto«t £⅛ irregularity, and he decided that if the retar® was irregular, at¡ ap.piicatiosí musí, &e made to the supreme «001-1 ⅞® set ⅛ aside.

The defendant also objected íhaí the jadgaseot had not beet! docketted ⅛ the -county -whose he ®eskfes. The -ekaraeelloir decided that ⅛ is net necessary to docket a judgment of the •supreme wurt, to enable -the plaintiff t© sell the 4efe®daat’s fete-rest in fends; the -object of dock-e&tag being merely to -obtain a lien -upon the fends as -agaiffist -subsegaeai mortgagees or judgment -creditors.

j-⅜ That ’tire -defendant catmst object that the plain-tiff has not exhausted ⅛⅛ remedy against lands which had teen sold -or pledged to others before the execwlfea issued.

That a judgment recevea’ed -previous i® the passage of the few requiring judgments ⅛ the supreme-eeur-t to fee d-ocketteii ⅛ the severa1! counties, ⅛ a Idea -spe® ail ⅛« lands of the defendant ⅛ any of the counties-of the State, without being -áoeketted ia«acfe -county» And tfeai tfe@ revival of a judgment by fieri facias does not -rest des* a seco.nd dgdtoíífeg ae-«sesswy as íg ike original debt and caste.

Motion denied as to defendant Mumford, but without prejudice to complainant’s right to renew it. Costs to abide the event. Motion granted as to defendant Dakin.