Ward v. Beebe — 15 Abb. Pr. 372

Majority

p. 372

WARD a. BEEBE.

Supreme Court, First District; At Chambers,

Sept., 1862.

Headnote

Supplementary Proceedings.—Property in hands of Third Person.—Uotice to Judgment-Debtor.

It is entirely discretionary with the justice entertaining proceedings, under sections 294, 297, of the Code, against a person having property of a judgment-debtor,

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whether notice of any step in the proceedings shall be given to the judgment-debtor.^[1]

A final order, made in such proceedings, without notice to the debtor, although it might be vacated by the judge who made it, if injustice has been done, is not void or irregular, and cannot be disregarded in the proceedings against the debtor.

Supplementary proceedings.

Judgment was recovered in this action in favor of Henry W„ Ward, plaintiff, against the defendants, Welcome E. Beebe and

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Elisha Ruckman, April 29,1862, for $610.40. After the return of the execution unsatisfied, an order was issued for the defendant Beebe to appear and submit to an examination. He failed to comply with the order. The plaintiff moved for an attachment, which was denied. The remaining facts are sufficiently stated in the opinion.

Isaiah T. Williams, for the plaintiff.

Welcome R. Beebe, defendant, in person.

The plaintiff moves for an attachment against Beebe, for non-attendance at the return of an order for his examination, &c., in proceedings supplementary to execution.

The defendant excuses his absence, at the hour appointed, on account of his illness. His excuse was considered sufficient for that occasion, upon his submitting to an examination and proceeding at once.

The defendant, in answer to this requirement, produced two orders, and the proceedings whereon they were founded, requiring him to pay to the sheriff—to apply on executions in his hands, in favor of Ruckman against Ward, out of the moneys owing from him to Henry W. Ward—such sum as will be sufficient to satisfy them ; and the defendant offers to pay the residue of the amount due to the plaintiff on the judgment herein, with costs.

The plaintiff insists that these orders, so obtained by Ruck-man, in aid of his executions against Ward, now in the sheriff’s hands, ought not to be deducted from the amount due to him from Beebe, under the judgment and proceedings herein, on the ground that they were obtained by Ruckman, or his attorney, ex ga/rte, without any notice to him, and are therefore irregular.

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The orders that were issued for the examination of Beebe, upon the judgments and executions of Ruckman against Ward, appear to be fully authorized by section 294 of the Code, without any notice to Ward, the judgment-debtor therein, unless the judge in his discretion should think proper to require it. There is no irregularity, therefore, in the preliminary order.

The object of a notice to the judgment-debtor is, of course, to afford him an opportunity to show that the judgment has been paid, or to establish any other satisfaction or defence arising since the judgment was perfected.

The section just referred to gives no authority to the judge, except for the examination of third persons.

By section 297, the power is conferred to direct the party who owes the judgment-debtor to apply the amount in satisfaction of the judgment.

It has been held in this district that the proceeding under section 292 should be instituted against the judgment-debtor, or that he should be notified of the proceedings under section 294, before any order is made to apply money or property in the hands of a third party to the satisfaction of the judgment or execution against the debtor.

This rule must, however, be subject to some exceptions: as in the case of a judgment-debtor not within the jurisdiction of the court, or where no notice could be given him.

As a discretion is given to the judge, under section 294, in directing notice to be given, that discretion must follow, I think, to the final consummation of the proceedings by the order to be made under section 297. The order directing the application by Beebe of so much of the sum due from him to Ward as should be sufficient to satisfy the executions against him in the sheriff’s hands, cannot be held void or- irregular; but the order might very properly be vacated by the judge who granted it, if any injustice had been done.

In the present case, it is not disputed that the judgments of Ruckman against Ward were valid, and wholly unpaid.

It is said that an appeal from the judgments is pending, but no security has been given to stay proceedings.

I think the orders objected to must be upheld, and that upon the payment of the executions in the sheriff’s hands, that sum must be deducted from the amount to be collected in this pro

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ceeding. Unless Beebe pays the balance to Ward, or his attorney, with $25 costs of the supplementary proceedings herein, he must submit to an examination on twenty-four hours’ notice of this order.