Talcott v. Rosenberg

8 Abb. Pr. 287, 3 Daly 203

• Court: New York Court of Common Pleas
• Decided: April 15, 1870
• Status: Published

Opinion

By the Court.—Loew, J.

On this appeal, three questions are presented for our consideration.

1st. Were the affidavits, upon which the attachment was issued by the court below, sufficient to sustain the same, and confer jurisdiction on that tribunal \

2nd. Was it necessary that the attachment should bear the seal of the court; and if so, could the defect of its omission be cured by amendment ? And

3rd. Was the sheriff’s return sufficient; and if not, had the court below the power to order it to be amended ?

As to the sufficiency of the affidavits, it may perhaps be that the plaintiff did not make out a very strong case, but still I think the facts set forth are sufficient to support the allegation that the defendants had disposed, and were .about disposing, of their property, with the intent to defraud their creditors. From plaintiff’s affidavit it appears that when the goods were purchased the defendants stated that they had twenty-five thousand dollars cash capital in their business, over all their, .debts and liabilities ; that they had other propert-y in addition, which made them worth forty thousand dollars, and that they were doing a cash business ; and yet a few weeks thereafter, when the indebtedness became due, they declared that they had no money, and had not had any for- many days, except what they had borrowed, and that they did not know whether they were solvent or not. It further appears, that within a month prior to this time their stock of goods had amounted i.n value to twenty thousand dollars, but that it had now suddenly become reduced in amount to two thousand dollars ; which they were then packing up and removing. It also appears, that within the same space of time they had secretly removed many thousand dollars worth of goods from their store, and sent the same to Trenton, N. J., New Brunswick, Rochester and Albany, all directed to “S, Lowenstein,” a brother of one of the defendants.

It seems to me that this affidavit was sufficient to authorize the issuing of the attachment. Such was our opinion on the argument; and upon reflection, I, for my part, can see no reason for changing it. A liberal indulgence is to be extended to these proceedings, even upon questions of jurisdiction; and although the case be neither strong nor conclusive, still, if enough is set forth in the affidavit to require of the officer the exercise of his judgment in the matter, and the facts legally tend to support the allegation that the defendant has assigned and disposed of, or is about to assign and dispose of, his property, with the intent to defraud his creditors, it will be sufficient (Van Alstyne v. Erwin, 11 N. Y., 340, 341; Bascom v. Smith, 31 N. Y., 595; 4 Hill, 598, 602; 5 How. Pr., 386).

With regard to the second point, it may be said that the law creating the marine court provided that all process issuing out of said court should be sealed with the seal thereof (2 Rev. Laws of 1813, p. 383, § 111). In Churchill v. Marsh, 4 E. D. Smith, 369, this court held that a compliance with said provision of the law is still requisite and necessary.

Upon the doctrine of stare decisis, that decision, unless manifestly erroneous (which I am not prepared to say it is), controls, and should be adhered to by us in the present case.

It follows, therefore, that the attachment should have been issued under the seal of the court.

The counsel for the respondent, in support of his argument that the seal was unnecessary, has referred us to section 57 of the judiciary act of 1847 (Laws of 1847, ch. 280, § 57), which declares that no process of a court of record, which shall be subscribed with the name of the attorney or party by whom it is issued, except such as shall be issued by spécial order of the court, shall be deemed void or voidable by reason of having no seal.

This provision, I am inclined to think, will not aid him. Although the law creating the marine court declares that it shall be a court of record, still it is such only for certain purposes. Its jurisdiction is special and limited ; nor does it, in the exercise of that jurisdiction, act as a court of record between parties (1 Duer, 158; 2 E. D. Smith, 595; 23 Wend., 375; 6 Hill, 590; 19 Abb. Pr., 236). That court is nowhere mentioned in the judiciary act; and I am satisfied, from the whole tenor of the act, that the provision referred to was intended by the legislature to apply only.to courts of record having general jurisdiction, and where the summons or other process is issued and subscribed by the attorney or party to the action, and not by the clerk of the court, as is the case in the marine court. The intention of the law-makers being ascertained, that should govern and control in construing a law, although such construction seem contrary to the letter of the statute (Tonnele v. Hall, 4 N. Y. [4 Comst.], 140; Reno v. Pindar, 20 N. Y., 301).

Let us now inquire whether the defect of the absence of the seal could be cured ; and if so, what power the marine court had to amend this process on the return day thereof. It has been held that a defect which can be waived by a party is an irregularity, whereas if it cannot be waived it is a nullity, and renders the process or proceeding in which it occurs totally null and void (McNamara on Nullities, 2, 3, 6; Holmes v. Russell, 9 Dowl., 487; Clapp v. Graves, 26 N. Y., 420). I presume it cannot very well be questioned but whaf'the defendants had the right to waive the omission of the seal to the warrant, and that if they had appeared in the action and pleaded to the merits, the defect would have been waived (1 E. D. Smith, 417; 3 Id., 577; 1 Hilton, 49; 26 N. Y., 420).

If this be so—and even Judge Woodruff concedes it so in Churchill v. Marsh (supra)—then it would seem that the defect was merely an irregularity, and did not render the process null and void. By the Revised Statutes, the court in which any action is pending has power, at any time before judgment, to amend any process, either in form or substance, for the furtherance of justice, on such terms as may be just (3 Rev. Stat., 5 ed,, 721, § 1). And section 173 of the Code provides that the court may, - before or after judgment, amend any process or proceeding, by striking out the name of a party, or by correcting a mistake in any other respect. It has been repeatedly held that the marine and other courts of inferior jurisdiction have the same general power to allow amendments that courts of record possess (Cooper v. Kinney, 2 Hilt., 12; Perry v. Lyman, 22 Barb., 139; Bruce v. Benson, 10 Wend., 213; Ageda v. Faulberg, 3 E. D. Smith, 178; Near v. Van Alstyne, 14 Wend., 230; Fulton v. Heaton, 1 Barb., 552). If, therefore, this had been mesne process, or if the amendment had been allowed in any pleading or proceeding, after the court had acquired jurisdiction, the power of the marine court to order the amendment could not be questioned. But this attachment was original process, by the service of which the court was to obtain jurisdiction of the person of the defendants ; and as inferior courts must acquire their jurisdiction strictly in the manner prescribed by statute, I have had grave doubts as to the power of the court to amend it. But on the other hand, it may be said, that as the Ian-, guage of both the Revised Statutes and of the Code, declaring that “any process, &c.,” may be amended, is broad enough to cover this case, and as the defect arose through the omission, neglect or mistake of the clerk of the court, the plaintiff ought not to suffer (Neal v. Berryhill, 4 How. Pr., 16). It is also to be remarked, that the act requiring the marine court to affix a seal to its process, was passed many years before either the Revised Statutes or the Code was passed; and^it must be assumed that the law-makers knew off, its existence when the latter acts were passed, and that they passed them with reference to that as well as any other law applicable to that court. Again, of late years the policy of the legislature and the tendency of the courts seem to have been in favor of simplifying the practice in legal proceedings as much as possible, and of disregarding, more and more, technicalities and matters of form, and especially so where it may be necessary for the furtherance of justice.

To illustrate this, it is only necessary to refer to the act of 1847, by which the seal to process of courts of record may be dispensed with, the extensive provisions of the Revised Statutes and of the Code in regard to amendments, and the leaning of the court of last resort in favor of a liberal construction in proceedings by attachment, even upon questions of jurisdictions.

Then, too, it has been expressly held that original process may be amended as well as any other (Bartholomew v. Chatauque Bank, 19 Wend., 99; and see Near v. Van Alstyne, 14 Wend., 230; Weir v. Slocum, 3 How. Pr., 397; Neal v. Berryhill, 4 Id., 16; People v. Steuben, 5 Wend., 103).

In Churchill v. Marsh {supra), the question of the power of the marine court to amend the process by-affixing the seal, was neither discussed nor decided. It is true, Judge Woodruff intimates that the omission of the seal rendered the process void. But, as we have already seen, the better view would seem to be that it was merely an irregularity, and at all events it will be safe to treat it as such, rather than as a nullity (26 N. Y., 420). We should also bear in mind, that in the rendition of that decision, one judge dissented; and although I do not feel disposed to question the correctness of the decision in that case, still I am inclined to think it went quite far enough, and should not be extended.

The cases of Hallett v. Righters, 13 How. Pr., 43, and Kendall v. Washburn, 14 Id., 380, are clearly distinguishable from the one under consideration.

In both of these cases the summons was served by publication ; and it was held that the statute providing .for substituted service being new, must be strictly complied with, or the court will not acquire jurisdiction, and that any defect or error in the proceedings, tending to confer jurisdiction, could not be cured by an amend-ment. Now, the object of serving the summons on the defendant is to apprise him of the fact that an action has been commenced against him. In certain cases, where the defendant cannot be found, the statute-allows the service to be made by publication. . Surely, in such a case, the statute ought to be strictly pursued, as the defendant is clearly entitled to the benefit of all the means and methods which the law provides for informing him of the commencement of the action, before and not after judgment. And of course, if the statute is not complied with, the defendant has not, in contemplation of law, been served with the summons, and the court has not acquired jurisdiction of his person. So, too, if in a justice’s court an action is commenced by attachment, and the affidavits upon which it is granted are insufficient to confer jurisdiction of the subject-matter on the court, I am of opinion that the defect would not be supplied either by an amendment, or the introduction of additional affidavits.

But the case at bar is entirely different. Here the marine court obtained jurisdiction of the subject-matter by the affidavits, and all that was required to authorize it to proceed legally was to obtain jurisdiction of the persons of the defendants. That was accomplished by the personal service of the attachment. That, it seems to me, was the principal and essential act necessary to confer jurisdiction. The objection that the attachment had no seal was, after all, only a technical one. One of the main, if not the main object, I take it, of having a seal' affixed at all, is to assure the defendant that the process was in reality issued by the court.

This was practically.accomplished when, on the return day, the court, in presence of defendants’ counsel, ordered the process to be amended by having the seal affixed.

On the whole, I am of the opinion that the marine ’court had the power to order the amendment in question.

With respect to the third and last point, it would seem that no objection was made to the sufficiency of the sheriff’s return, either before the justice, on the return day of the attachment, or when the case was before the general term of the marine court, on appeal, but the question was first raised at general term of this court.

How, as a rule, a party cannot, on appeal, raise a point which was not raised in the court below, nor insist on an objection not taken there, and rely upon it for a reversal of the- judgment in the court of review (Duffy v. Thompson, 4 E. D. Smith, 178; Millard v. Bridge, 4 Barb., 361; Merritt v. Thompson, 1 Hilton, 650; Id., 161; 5 N. Y., 492). • But as the point may be considered as affecting the jurisdiction of the const below, and as a question of that kind can probably be raised at any time, I will briefly consider it.

This attachment was issued under the act to abolish imprisonment for debt (Laws of 1831, ch. 300, § 34). By section 36 it is provided that every attachment issued by virtue of that act shall be served in the manner provided by Article II., title 4, ch. 2, part 3, of the Revised Statutes, except that if the defendant can be found in the country, the copy .of such attachment and inventory shall be served on him personally, instead of being left, as in said article provided; and the officer is also required to state specifically in his return whether such copy was or was not served on the defendant personally.

Now, there is nothing in the article of the Revised Statutes referred to, setting forth specifically what the return of the officer is to contain. But by section 29 he is required to execute the attachment at least six days before the. return day, and immediately leave a copy of the attachment and inventory, certified by him, at the last place of residence of the defendant, &c. ; and by section 33 he is required to make a return thereof, at a day therein named, with all his proceedings thereon, in writing, subscribed by him.

In his return the sheriff certifies, that by virtue of the attachment he did, on March 23, 1869, attach the property mentioned in an inventory annexed to the return ; and further, that he served a copy of said attachment, and of the inventory, dyly certified by him, on Felix J. Rosenberg, one of the defendants, personally.

The officer has, therefore, fully complied with the act of 1831, in that he has set forth in the return that a copy of the attachment and of the inventory was served on the defendant personally.

It also appears from the return, that in accordance with the provisions of the Revised Statutes, he exeexited the attachment six days before the return day mentioned therein.

The only other duty the Revised Statutes .imposed on the sheriff was, that he should serve the copy of the attachment and of the inventory (which by the act of 1831 was to be served on the defendant personally, if he could be found in the country) immediately. The sheriff returns, that he executed the attachment on a certain day ; and further, that he served the defendant personally with a copy of the attachment and of the inventory ; and I think the fair and reasonable intendment is, that he complied with the statute, and that the service was "made on March 23, when the attachment was executed. As we have already seen, the court of appeals 'has held, that a liberal indulgence should be extended to these proceedings, even upon questions of jurisdiction, as they would otherwise be rendered a snare rather than a beneficial remedy. In my opinion, therefore, the return was a substantial compliance with the statxite, and sufficient, under the decisions, to confer jurisdiction on the court (Bascom v. Smith, 31 N. Y., 595; Rosenfield v. Howard, 15 Barb., 546; Johnson v. Moss, 20 Wend., 145; Reno v. Pinder, 20 N. Y., 298; Van Alstyne v. Crane, 11 N. Y. [1 Kern.], 331). And more especially as defendants, on the return day of the attachment, made no objection to the sheriff’s return, but relied solely on other grounds to have the same dismissed. But even if the return was insufficient, I am inclined to think that under the provisions of the Revised Statutes and Code, relative to amendments, which, as we have seen, apply to the marine court, that court had the power to order the return of the sheriff to be amended, as was done in this case (3 Rev. Stat., 5 ed., 721, §§ 1, 4, 5; Code, § 173; Perry v. Tynen, 22 Barb., 137. And see opinion of Judge Woodruff, in Churchill y. Marsh, 4 E. I). Smith, 369). The court may permit an amendment, notwithstanding the defendant does not appear in the suit (Perry v. Tynen, 22 Barb., 137).

And although an appeal has been taken, the power of amendment is confined to the court in which the action originated, and when amended there, the return will, on motion, be conformed to it in the appellate court (Gould v. Glass, 19 Barb., 186; Luyster v. Sniffin, 3 How. Pr., 250; Rew v. Barker, 2 Cow., 408).

The judgment of the court below should be affirmed.

Daly, F. J., and Van Brunt, J., concurred.