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People ex rel. Roberts v. Bowe

8 Abb. N. Cas. 234 Court N. Y. Court of Appeals; English

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p. 234
PEOPLE ex rel. ROBERTS v. BOWE.
N. Y. Court of Appeals;
April, 1880.

Headnote

[Reversing 30 Hun, 85 .]
Order op Arrest.—Reversal op Judgment.
Where a judgment has been obtained in an action, in which a defendant has been arrested, if execution against the person is issued thereon, the order of arrest is extinguished; and it is not revived by a reversal of the judgment.
When process has once become functus officio, there is no resurrection short of a new exercise of official power.
Error to the general term of the supreme court, in the first judicial department, to review an order dis
p. 235
missing a writ of habeas corpus and remanding the plaintiffs to the custody of the sheriffs.
The plaintiffs, Andrew L. Roberts and Valentine Gleason, were sued by the New York Guaranty and Indemnity Company for the recovery of money alleged to have been obtained from the company by the said Roberts and Gleason by means of forged securities. An order of arrest was obtained in that action, under which they were imprisoned. Judgment was subsequently obtained against them, and execution issued against their persons. The judgment against them was reversed by the court of appeals (Reported in 7 Abb. New Gas. 334). They then obtained a writ of habeas corpus, returnable before the general term.
The supreme court at general term dismissed the writ, holding that on the reversal of the judgment the order of arrest resumed its vigor, and that the relators might be held under it (Reported in 20 Run, 85).
From this decision they brought the present appeal.
Ira Shafer ( William Sutphen, attorney), for relators.
Knox & Maclean, for the sheriff.
J. R. V. Arnold, for the N. Y. Guaranty and Indemnity Co.

We have examined the point presented, and the various considerations urged by the respective counsel, and we are of opinion that when the judgment was obtained, and the relators were charged in execution, the provisional order of arrest was extinguished, and of no force or validity, and was not revived by the reversal of the judgment.

Chancellor Kent, in Ward v. Dwight ( 7 Johns. Ch. 295 ), said: “ When process is once discharged and dead, it is gone'forever and it never can be revived, but by a new exercise of judicial power.” In that case it

p. 236
was claimed that an appeal from the order dissolving an injunction operated to stay proceedings, and hence revived the process until it was finally determined ; but the doctrine laid down applies to all cases, and holds that when process has once become functus officio, there is no resurrection short of a new exercise of judicial power.

A party is arrested, in civil cases, to detain Mm to answer a judgment and execution. The relators in this case have complied with that requirement, and they cannot be longer held.

In Arnold v. Thomas, ( 2 How. Pr. 91 ), the defendant, who had been arrested, and given a bond to the sheriff, was discharged on filing common bail, and the bail bond given up. Browsor, J., held, that as the order had been complied with, the defendant could not be retaken, and hence could not move to vacate the order. A different doctrine would involve great confusion.

Suppose the original judgment had been in favor of the relators, and they had been discharged, could they be retaken upon the same order % or suppose they had given bail for the jail liberties, the same result might follow.

No authority has been cited in favor of the doctrine contended for, and it seems more in accordance with general principles applicable to process to hold, that when once dead, it is gone forever.

We do not mean to intimate, that a new order might not be obtained.

It follows that the order of the general term must be reversed, and the relators discharged.

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