Gould v. Moore

51 How. Pr. 188

Opinion

Monell, Ch. J.

— When the judgment in this action was recovered, the defendant resided in Suffolk county, in this state. A transcript of the judgment was filed in, and an execution was issued to the sheriff of that county, which was returned unsatisfied. Tío other execution has been issued upon the judgment. Upon an affidavit of these facts, and also that the defendant now resides in this city, a suppleméntal order for the examination of the judgment debtor was granted by a judge of this court, returnable before himself at the court-house in this city.

A motion is now made to vacate the order, on the ground that it should have required the judgment debtor to appear “within the county to which the execution was issued” (Code, sec. 292), and, as it is claimed, such examination cannot be had before a judge of this court out of this city; that the order is void.

'There is no provision in the Code for a subsequent change of residence of the judgment debtor. The execution must issue to the county where the debtor resides, and it is claimed that he can be required to appear and be examined in supplemental proceedings in no other county; and so it is contended, that notwithstanding he may, when the supplemental order is granted, be residing in a county other than the one to which the execution was issued, and even remote from it, nevertheless, he can only be required to appear and be examined in the latter county.

There is a manifest defect in the law in not providing, in terms, for a change of residence, and authorizing the debtor to be summoned for examination in the county where he resides when the order is granted. , That, however, is a matter for the legislature.

The execution in this case was issued to the proper county, and its return unsatisfied entitles the judgment creditor to a supplemental order for the debtor’s examination. And the question is, whether a judge of this court can grant the order.

If the debtor had continued to be and was a resident of Suffolk county at the time of granting the order, I think it is quite clear that a judge of this court could not have made the order.

It has never been claimed for this court, that its judges could perform any official act out of the city of Hew York. It is, at least, so far local, that the- functions of the court, and of its judges, are confined to the local territory. This was expressly declared in the act of 1813 (chap. 239).

As the law now stands, the order must require the examination to he within the county to which the execution was issued, and as our judges could not go to Suffolk county to take the examination, they could not make the order.

But the Code provides for that case. A judgment of this court can he docketed in any county, and an execution may he issued thereupon to the sheriff of such county. The Code then provides that, upon the return unsatisfied of such execution, the creditor is entitled to an order “ from & judge of the court or a county judgeP

Ho doubt, if our judges can require the examination to be had in this city, then we can grant the order. But if the examination must be within the county to which the execution was issued, we cannot go out of the city to take it, and hence the “judge of the court,” as used in the Code, must mean a judge of a court whose jurisdiction and powers can be exercised in any part of the state, or who otherwise has acquired jurisdiction. For judges of courts of limited jurisdiction and powers, the county judge is named as the officer clothed with the requisite authority to grant the order, where the examination must be had in a county beyond the jurisdiction of the court where the judgment was recovered. Hor is the power supplemented by the authority to refer. For the judges of this court cannot accomplish by indirection what they cannot do directly.

In this case, however, it appears that the judgment debtor now resides in this city, and the order has been served upon him, and he is required to appear and be examined in this city. I can see no reason why, under these circumstances, we cannot require the debtor to attend.

The issuing of the execution and its return gave jurisdiction to grant the order, and as the debtor is now within the local or territorial jurisdiction of this court and of its judges, there does not appear any reason for turning the parties over to • the county judge of Suffolk county, and requiring them to go there to take the debtor’s examination.

This view is, I think, fully sustained by Brigham agt. Disbrow (87 Barb., 24), where, after the issuing of an execution to the sheriff of Tompkins county, where the debtor then resided, he removed to Cayuga county; without a new execution, a judge of the supreme court made the order returnable in Cayuga county. "It was held to be valid. Such judges, the court say, have jurisdiction over the state. That was affirmed in the court of appeals (5 Trans. App., 198); and the objection to the return of the order was expressly overruled, the court saying that the affidavit stated all that was necessary to show jurisdiction, “ where the order was granted requiring the defendant to appear before a judge in Cayuga county, being the county in which he resided at that time.”

We, having jurisdiction by the return of a properly issued execution, do not violate any provision of law in requiring the examination to be had in a place within our jurisdiction —' that also being the defendant’s present residence.

Motion to vacate order denied.