Spencer v. Cuyler

9 Abb. Pr. 382, 17 How. Pr. 157

Opinion

By the Court.

Footnotes

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*—Johhsoh, J.

We are unanimously of opinion that the orders, granted by the county judge, requiring the defendant, W. T. Cuyler, to appear and answer concerning his property, should be set aside, upon the sole ground that the sheriff’s return to the executions, upon which the orders were founded, was made at the solicitation and upon the request of the plaintiffs in the actions respectively, or their attorneys, before the expiration of the sixty days within which they were severally returnable. By statute, an execution is to be returnable within sixty days, and the plaintiff has no power to issue one returnable within any number of days less than sixty, nor can he compel a sheriff to make his return to one until the sixty days have fully expired.

Regularly, an execution has sixty days to run -as against any legal right or claim of the plaintiff. And although a sheriff may, upon his own motion, and under his official responsibility, rightfully return an execution at any time before the sixty days have expired, upon becoming satisfied that the defendant has not, and will not have within that time, any property out of which the execution or any part thereof can be satisfied, yet, if such return is procured by the plaintiff in such a manner that he would be precluded from maintaining an action against the sheriff for a false return, in case it should be made to appear that the defendant had property, it will not be allowed to serve as the foundation of proceedings supplementary to execution. A return, thus procured, is, for this purpose, to be regarded as the act of the party, and not the official act of the sheriff. The remedy by execution, in such case, has not been exhausted, as the statute obviously intended it should be before these supplementary proceedings could be instituted. If the practice adopted in the cases before us is to prevail, the issuing and return of an execution would become a mere empty form, and might as well be dispensed with altogether; and besides, it would naturally, if not inevitably, lead to the most intolerable favoritism and abuse. If we allow a sheriff to yield to the persuasion or dictation of a friendly or influential creditor, and fix, at his own discretion or caprice, different return-days, for different executions in his hands at the same time, we at once invest him with the dangerous powers of discriminating between creditors, and giving one a preference over another in respect to all the equitable assets of the debtors, capable of being reached by these proceedings. This consideration alone seems to us a sufficient objection to the practice, without adverting to the hardship and oppression to which a defendant may be so readily and so summarily subjected under it.

Under the Eevised Statutes, it was provided, that “ whenever an execution against the property of a defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied, in whole or in part,” the creditors suing out such execution might file a bill in chancery to compel a discovery of any property or thing in action belonging to the defendant. (2 Rev. Stats., 173, § 38.) The object and office of the proceedings supplementary to execution are the same precisely as those of a creditor’s bill, and the intention, doubtless, was to give the creditors the same remedy in a cheaper and more expeditious form. It will be seen, also, that the provisions of the Code, which authorize supplementary proceedings to be instituted, are identical with those of the Eevised Statutes, which authorized the filing of a creditor’s bill.

Each is authorized to be commenced “ whenever” an execution issued against the property of a defendant has been returned unsatisfied in whole or in part. The Court of Chancery, in construing this provision of the Eevised Statutes, held that although a sheriff might lawfully return an execution before the return-day, yet such return did not take effect until after the return-day had passed, and was then good by relation, and that no bill could be filed until after the return-day in such a case. (Cassidy a. Meacham, 3 Paige, 311; Williams a. Hogeboom, 8 Ib., 469.)

It is claimed, however, and has been several times held that, under the Code, the return-day of an execution is any day within the sixty, on which the sheriff, holding the execution, may elect to return it, and that whenever it is actually returned, the return-day has passed, and the return takes effect, and supple mentary proceedings may be commenced immediately, although the plaintiff could not compel a return until the end of sixty days, and but one of the sixty has elapsed when the return is made. I cannot believe that the Legislature intended to leave it to the sheriff to determine and fix the return-day as against parties, and to fix it by statute only in favor of the sheriff, in a proceeding against him by the plaintiff; and I have suggested some of the reasons above. But we do not propose to interfere with this question. Our decision in this case is based solely upon the ground, that the plaintiffs in the executions procured the returns to be made by the sheriff, and that they were not his unsolicited and voluntary acts. As the original orders are set aside, the order appointing a receiver necessarily falls also.

The orders at special term are, therefore, reversed, and the orders to appear and answer, and the order appointing a receiver are set aside, and the receiver is allowed to discontinue the action commenced by him, without costs.

Present, Wells, Smith, and Johnson, JJ.