Cowdrey v. Carpenter

17 Abb. Pr. 107, 2 Rob. 601

Opinion

By the Court.

Footnotes

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*—Monell, J.

The effect of the undertaking given upon the appeal from the judgment, was to stay all further proceedings upon the judgment appealed from. It therefore necessarily follows, I think, that all further proceedings upon the order" supplemental to the execution issued and returned upon the judgment appealed from, were suspended. The examination of the judgment-debtor could not proceed, nor could any action whatever be had or step taken under the order. It is even doubtful if the judge could adjourn, and thus keep afloat the proceedings.

The question then arises, whether the judge had the power to, or could in the exercise of his discretion, dismiss the supplemental order.

These proceedings are not before the court, and never come before the court, in any of their original incidents. The order is granted by a “judge,” the examination is had before a “judge,” and all orders to carry into effect the results of the examination are made by a “judge;” and nothing connected with the proceeding, from first to-last, comes before the court, except upon an appeal from some order made by the “judge.” We think it cannot be doubted that the judge has the same general power over these proceedings that the court would have, if the authority to make the orders and conduct the examination had been conferred upon the court. He may dismiss the proceeding for. want of jurisdiction, or for insufficiency or irregularity in the affidavit upon which the order was made; he may adjourn the matter from time to time; suspend the examination indefinitely; examine witnesses; admit or reject evidence; and punish parties and witnesses for disobedience of orders. His power, therefore, over the proceeding is absolute, and he is subject only to review by the court, on appeal from any of his orders.

But here, we think, the power of the judge ends, and he cannot ultimately dispose of the proceeding, to the prejudice of the creditor, by dismissing or annulling it against his objection.

The object of the examination is to reach the equitable interests and things in action of the judgment-debtor, which cannot be reached by execution upon the judgment. By the service of the order, and the restraint of the debtor, the creditor obtains an equitable lien upon such interests and things in action, which he has the right to retain as a security pending the suspension of his power to proceed on his judgment. Having acquired such lien previous to the appeal, he cannot, we think, in the absence of some express provision of law, be deprived of it. The appeal suspends his right to obtain the benefit of his lien, but does not take it away.

We are not aware of any case where, after execution and levy under it, an appeal has been taken from the judgment, the court has set aside the execution and removed the levy. The levy is stayed, and the sheriff cannot proceed to sell. Kor could the lien of a judgment, upon the real property of the judgment-debtor, be removed by an appeal and security, until a recent special enactment, applicable to such a case. Before that law, the court were without power to relieve the property, be the security never so ample.

The cases of Parsons a. Travis (2 Duer, 659}, and Spencer a. Rogers Locomotive Works (13 Abbotts’ Pr., 180), we think sustain this view.

If, however, the right to dismiss these proceedings rested in the discretion of the judge (although we think it does not), it would be an unsound exercise of such discretion to deprive the creditor of a security obtained through his equitable lien upon the debtor’s property, by substituting for it the mere personal obligation of two sureties, who, although responsible now, may be utterly and hopelessly insolvent before the determination of the appeal.

Until the Legislature provides for the discharge of these proceedings, upon securing the judgment on appeal, as they have provided for relieving real property, it seems to us, independently of the want of power, that no other or greater effect should be given to the appeal from the judgment than is given by the Code; namely, to stay all further proceedings upon the judgment appealed from, and necessarily all further proceedings under the supplemental order.

We think the dismissal of the supplemental proceedings was erroneous, and the order appealed from should be reversed. .

Order reversed.

Present, Bosworth, Ch. J., White and Monell, JJ.