People ex rel. Oakley v. Acker

New York Supreme Court

People ex rel. Oakley v. Acker

20 Wend. 612

DecidedSeptember 15, 1839

StatusPublished

This text of 20 Wend. 612 (People ex rel. Oakley v. Acker) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Oakley v. Acker, 20 Wend. 612 (N.Y. Super. Ct. 1839).

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Opinion

By the Court, Cowen J.

I am inclined to think that the call of the sheriff on the 18th of January might have been considered regular, had the relator so chosen to regard it, after he found that the sheriff had himself consented to the return and filing of the attachment as of a previous day. The relator did not, however, treat the return as regularly made at the day but disaffirmed it, and proceeded against the coroner for not making it in season. It is not necessary to deny that, after the latter proceeding had been disposed of, he might still have recurred to the original call, and made it the foundation of that in July term, had he given previous notice of such intention to the sheriff. But, as the matter stood, the whole was a complete surprise on the sheriff, to say the least. It was out of the ordinary course of practice, which is to call the sheriff twice in full term on the two non-enumerated days next succeeding, or including the return day. Where the attachment is returnable after all the non-enumerated days are past, the first call may be made on the return day. So much the sheriff must hold himself ready to meet, and, if in default on the second call, his bond may be prosecuted on the usual order for that purpose, or a further attachment may issue, or both may follow, according to circumstances. If the relator will go on without giving any notice beside that derivable from the attachment, he must strictly follow up his days in the order mentioned. If he omit to do so, the utmost we can allow is, that he shall not lose his suit, but may still go on with [614]*614his calls upon due notice for such time as he would be bound to give of any other motion. That enables the sheriff to appear and answer interrogatories, or submit to terms. Such is the course which should have been pursued in this instance.

The proceedings of the relator are, therefore, irregular, and must be set aside with costs.

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By the Court, Cowen J.

I am inclined to think that the call of the sheriff on the 18th of January might have been considered regular, had the relator so chosen to regard it, after he found that the sheriff had himself consented to the return and filing of the attachment as of a previous day. The relator did not, however, treat the return as regularly made at the day but disaffirmed it, and proceeded against the coroner for not making it in season. It is not necessary to deny that, after the latter proceeding had been disposed of, he might still have recurred to the original call, and made it the foundation of that in July term, had he given previous notice of such intention to the sheriff. But, as the matter stood, the whole was a complete surprise on the sheriff, to say the least. It was out of the ordinary course of practice, which is to call the sheriff twice in full term on the two non-enumerated days next succeeding, or including the return day. Where the attachment is returnable after all the non-enumerated days are past, the first call may be made on the return day. So much the sheriff must hold himself ready to meet, and, if in default on the second call, his bond may be prosecuted on the usual order for that purpose, or a further attachment may issue, or both may follow, according to circumstances. If the relator will go on without giving any notice beside that derivable from the attachment, he must strictly follow up his days in the order mentioned. If he omit to do so, the utmost we can allow is, that he shall not lose his suit, but may still go on with [614]*614his calls upon due notice for such time as he would be bound to give of any other motion. That enables the sheriff to appear and answer interrogatories, or submit to terms. Such is the course which should have been pursued in this instance.

The proceedings of the relator are, therefore, irregular, and must be set aside with costs.

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Bluebook (online)

20 Wend. 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-oakley-v-acker-nysupct-1839.