Curtois v. Harrison

3 Abb. Pr. 96, 1 Hilt. 109, 12 How. Pr. 359

Opinion

Ingraham, F. J.

The plaintiff recovered against the defendant a judgment in the Marine Court, under the statute of 1849, ch. 258, and filed a transcript with the county clerk. After issuing an execution, he commenced supplementary proceedings to enforce the payment thereof. The order obtained was against L. F. Harrison, as a person having property in his possession of the judgment debtor exceeding in value $10. On the return of the order, the judge at chambers, on defendant’s motion, discharged it, from which the plaintiff appeals.

There is no force in the objection that the judge could not on the papers discharge the order. These orders are granted ex pwrte, and the first opportunity the defendant has to be heard is on the return of the order. If the affidavit on which the order was granted was insufficient, or if for any cause the order was improvidently made, the judge ought to vacate it, and it is the right of the defendant to have such a motion, under such circumstances, granted.

There may be some doubt whether the Young Men’s Democratic Club is a joint stock company or association within the meaning of the statute. It can hardly be contended that every political association or committee is to be considered a joint stock association.

* But whether it is so or not, it is too late for the defendant in this proceeding to raise the objection. It should have been done on the trial, and if overruled there, the defendants should have appealed. Hot having done so, the judgment on this proceeding is conclusive against them.

It is said, however, that the judge did so decide, and ordered judgment against the defendant Harrison individually; and affidavits and the judge’s certificate to that effect are submitted.

The judge rightly disregarded these papers. If the judgment was erroneously entered up in the Marine Court, we cannot go behind that judgment, and correct errors which can only be done by that court. The defendants must apply to the Mai’ine Court for relief.

The only question, therefore, that is of any importance on this appeal, is whether this proceeding can be resorted to upon a judgment recovered against a joint stock association under the statute of l"8í9^^;i.»

It is settled' thafi# 1¿ie judgment was against a corporation, the remedy by suppleftlehtary proceedings is improper, and that the plairiiiffisho^ild Resort to the remedy provided by the Revised Statutes. (Hmd|i vs. The Canandaigua & Hiagara Falls RqR. Co., d8■ JfTo,vi. jPr. i?., 487).

The judgment in Buscase is not against any individual.' It is against the" cfuB" only as a joint stock association. The members of that club are not defendants any more than stockholders in a corporation are defendants when the action is brought against the corporation. They are not personally liable, nor can their individual property be reached by such a judgment. If it were otherwise, it would be a very unnecessary provision in the act to reserve to the plaintiff the right to proceed against the individual members as is prescribed in section 4.

The insertion of the name of the treasurer as defendant, does not make him in any way responsible, but merely provides for commencing the action, in the same way as the free banking statute directs that actions may he commenced against the president of the institution as such. In neither ease does any personal liability attach to the individual. This proceeding, then, is under section 294 of the Code. It does not limit the remedy to any county in which the debtor resides, nor is it required that it should appear in the affidavit that the execution has been issued to the sheriff of such county. Such has been the construction given to this section. (The People v. Horton, 4 Sandf. 8. O. J¿., 640).

The reasons assigned by the court why proceedings cannot be taken under section 292 against the corporation, have no application to section 294. The judge says,—“section 292 provides for the order when the execution has been issued to the county'where the debtor resides,” &c. This evidently refers to a judgment against a natural person who has, or is capable of having a residence, &c. A corporation being a mere artificial being, can have no residamjegjpffi this jurisdicr tional fact can never be shownexecution against such a defendant.”*

In section 294 no such jurisdictional f^ítitóÉtlwsary, and there is no difficulty in complyil^$)fth^fthe requisites of that section against a corporation Br joint £±ac^^smation as well as against individuals. Th<^cá^is a strozar one also against joint stock associations, bectNíftJ&íyrfovisions of the Revised Statutes, as to the sequestration of the property, do not apply to any other bodies than corporations, and if this section is held to be inapplicable to such associations, there is no means of enforcing the payment of such judgments, except by execution.

It is said that Harrison, against whom the order is made, is a defendant, and therefore not subject to such an examination.

I have already remarked that the individual members are not defendants, and cannot be proceeded against as such. Any one of them who holds the property of the association, may, I think, be examined, whether named as an officer or not. The object is to ascertain the property of the association, not that of Harrison, and the examination should be confined to that limit.

I think the order appealed from should be reversed, and the witness be required to submit to an examination. As the question is new, no costs should be allowed on this appeal.

The provision of the original act (Laws of 1849, ch. 358, <51. 2 Rev. Stats., 717, § 131) is :—“ Any joint-stock company or association, consisting of seven or more shareholders or associates, may sue and be sued in the name of the president or treasurer for the time being of such joint stock company or association,” &c.

Joint stock companies arose first in England and are there very numerous ; they are in this country comparatively few. They took rise from the difficulty and expense in England of obtaining corporate charters. They are in fact large partnerships, imitating corporations in organization. By the statute of 7 & 8 Victoria, (ch. 110, § 2), the term is defined :—“A partnership whereof the capital is divided or agreed to be divided into shades, and; so as to be transferable without the express consent of all the copartners.”

Now this would seem to be an essential element of a joint-stock association properly so called ;—the joint owning of a partnership capital represented by shares after the manner of a corporation. Such associations only could be sued in the manner authorized by the act.

But by act of 1851, ch. 455, the act of 1849 above mentioned, is extended “ to-any company or association composed of not less than seven persons who are owners of or have an interest in any property, right of action or demand jointly or in common, or who- may be liable to any action on account of such ownership or inteiest.” Undei this language it can no Iongei be necessaiy that an association should lepiesent its capital by slock, divided in skares, to authorize it to sue oi be sued in the name of its office!.

On the question whether a corporation can be treated as having residence, different views are entertained. In the Vermont R. R. Co. v. The Northern R. R. Co., (1 Code P. -V. S., 401, 6 How. Pr. P., 105), the view above taken is intimated. In Sherwood v. The Saratoga & Washington R. R. Co., (15 Barb., 650), it was held that “ a railroad company must be treated as an inhabitant and freeholder in each county where its track is laid.” In Conroe v. The National Insurance Co., (10 How. Pr. P., 403, 1 Ante 573), and in Hubbard v. The Same, (11 How. Pr. P., 149, 2 Ante 561), it is held that, as respects the place of trial of suits by or against a corporation, its residence is in the county where its office is located and its general business is carried on.