Howland v. Ralph

3 Johns. 20

• Court: New York Supreme Court
• Decided: February 15, 1808
• Status: Published

Opinion

Per Curiam.

It appears, from the affidavit of the deputy-sheriff, and of the person who made the service upon the deputy, that a copy of the judge’s order was served, but that the original order was not shown. The general rule is, that in order to bring a party into contempt, the original order must, at the same time, be shown. (King v. Smithers, 3 Term, 351.)

* The motion for an attachment against the deputy-sheriff must, therefore, be , . , rp, . . , , denied, ihe next question is, whether we can, upon the present motion, relieve William Me Nee, from the effect of the sale. The execution would clearly have been irregular, for want of a revival of the dormant judgment, had it not been for the defendant’s consent in writing, to issue the execution, without such revival, and the question is, whether that consent was not sufficient to cure the irregularity. There is no complaint on the part of the defendant, that it was unfairly obtained from him ; and we cannot question the proceeding in the face of that consent, arid without any application on the part of the defendant. If a scire facias had issued, it. would not have been directed to Me Nee, the party complaining ; and, as the defendant admits that the judgment was not satisfied, its operation would have been the same, as it respects Me Nee. He could not have come in and pleaded. He would have been a stranger to the record. The great ground of complaint is, that there exists a collusion between the plaintiff and defendant, to defraud him, and that the judgment has been collusively kept on foot, and an execution fraudulently issued, to injure him. If this be so, (and there is colour for the suggestion, arising from the facts disclosed by the affidavits) he is, undoubtedly, entitled to relief against the fraud. But this court cannot interfere effectually, upon the present motion. If the deed was not executed to the purchaser, before the service of the rule of last August term, we can continue that rule in force against the sheriff, until the next term, so as to give Me Nee an opportunity to apply, in the mean time, to the court of chancery for relief, or to put the question of fraud and collusion, in a train for trial at law, by an issue in fact, and so far we are willing to go.

See 2 Johnson, 104, Cheetham v. Lewis.