O'Neil v. Martin

1 E.D. Smith 404

• Court: New York Court of Common Pleas
• Decided: July 15, 1852
• Status: Published

Opinions

Ingraham, First J.

In an action before the justice, the plaintiff recovered judgment, and after filing a transcript, commenced proceedings in this court for the examination of the debtor. That proceeding was dismissed, because the justice had no jurisdiction of the parties to the action. From the order dismissing that proceeding, the plaintiff appeals.

The order was the subject of appeal, and did not require security, unless a stay of proceedings was necessary.

I think it was erroneous, on a proceeding supplementary to execution, to review the merits of the action in which the judgment was recovered. The want of jurisdiction ' does not appear upon any matters before the judge at chambers, but on the contrary, the justice had jurisdiction of the matter in controversy. If the defendants objected to the validity of the judgment, they should have appealed. By not doing so, they submit to the judgment, and I know of no case in which it would be proper, on supplementary proceedings, to review the merits of the original action.

The order dismissing the proceedings should be revoked, and the defendants required to attend before the judge at chambers, on such day as he, by order, shall appoint, for such further proceedings as the plaintiff shall move for therein, with $10 costs of this appeal.