Pitt v. Davison

12 Abb. Pr. 385

• Court: New York Supreme Court
• Decided: September 15, 1861
• Status: Published

Opinion

Sutherland, J.

—I do not think it would be regular or proper for me to permit the final decree in this action to be attacked collaterally on this motion ; but it is very plain, from the papers submitted on the motion, that the decree was and is erroneous in form and substance, and I think I must infer, from facts conceded on the motion, that the imprisonment of the defendant, Erastus Davison, was and is a consequence of such error.

■ Assuming that the plaintiffs had, when the action was commenced, a proper case for a decree of specific performance, yet, by the subsequent foreclosure sale and conveyance, under the mortgage, which Erastus Davison had executed prior to the commencement of the action, it had become, when the decree was made, impossible for him to convey to the plaintiffs. The decree should have recited the reason and fact of such impossibility, and in place of decreeing a specific performance, should have decreed compensation in damages. (Moss a. Elmendorf, 11 Paige, 277; Woodward a. Harris, 2 Barb., 439.)

Had the decree been for compensation in damages, instead of a decree for a specific performance, I do not think it could have been enforced by a proceeding as for a contempt. It would then have been a final decree for the payment of money, and the plaintiffs might have enforced it by execution. (3 Rev. Stat., 5 ed., 849, § 1, subd. 3; Ib., 269, § 66; Rockway a. Copp, 2 Paige, 578.) I cannot doubt the power and duty of the court to amend the decree on a direct and proper application for that •* purpose, in the respect spoken of. It is true, such amendment would involve an inquiry into facts dehors the record; but such inquiry could be made by an order of reference or otherwise. There might be doubt whether a court of errors or of appeals could make the amendment; but I cannot doubt the power of the same court which made the decree to make or allow such amendment as the facts might warrant. (Cooper a. Bissell, 15 Johns., 318.)

It is strange, indeed, that the court', in ignorance of the facts, should ever have been permitted to decree an impossibility. Having done so, it would be quite as strange if the defendant must remain in prison during the remainder of his life, for not performing an impossibility. If any error was committed in making the decree, it cannot be said to be an error of the court, in point of law, but an error arising from the omission of a fact.

From the papers before me, it does not appear that the fact of the reason of the impossibility of the defendant to convey any interest or title to the premises was brought to the notice of the court when the decree was piade, by the report of the referee or otherwise. It appears to me, that upon the decree being amended, in accordance with the supposed facts, the subsequent proceeding as for a contempt, to enforce the decree as it. now is, must fall.

I do not intend to prejudge the question of amendment on this motion, for, as I have said, I do not think it proper or regular to permit the decree to be attacked collaterally on this motion; and, besides, on a direct motion to amend, other and further facts may appear; but in denying the defendant’s motion to be discharged from imprisonment, I think it proper to distinctly say, that for the reasons above stated the motion is denied, without prejudice to his right to move to have the decree amended, and all subsequent orders and proceedings vacated or amended as he shall be advised, and- with leave to renew this motion to be discharged from imprisonment, upon, or subsequent to, such amendment being allowed, or upon the order or precept by which he was committed to prison being vacated. I see no objection to the defendant’s including the motions to amend the decree, to vacate or amend the subsequent proceedings, and to be discharged from imprisonment, in one notice of motion, or order to show cause.

I am .not satisfied that the order or precept by which the defendant was committed to prison can be treated as a nullity, even assuming that the order to show cause was not personally served on the defendant, and that he in fact had no notice of it prior to the adjudication on the question of contempt. The statute (3 Rev. Slat., 5 ed., 850, 851, §§ 3 and 5) no doubt intends that the order to show cause, &e., should, as a general rule, be served personally on the accused party .; but as at present advised, I am not prepared to hold that the court may not, on special grounds, dispense with such personal service. (2 Barb. Ch., 278; Albany City Bank a. Schermerhon, 9 Paige, 374.)

The motion must be denied, without costs, and without prejudice, and with leave to renew, as above stated.