Morrell v. Hey — 15 Abb. Pr. 430

Majority

p. 430

MORRELL a. HEY.

Supreme Court, First District; At Chambers,

November, 1862.

Headnote

Commission in Supplementary Proceedings.

There is no authority, either under the Revised Statutes, or section 399 of the Code, as amended in 1860 and 1862, for the issue of a commission in supplementary proceedings.^[1]

p. 431

Application for a commission.

Judgment was recovered in this action by John H. Morrell against Eibe Hey, for $199.38. After the return of execution unsatisfied, an order for the examination of the defendant, in supplementary proceedings, was issued, and a reference ordered to take such .examination. Pending the reference it became desirable' for the plaintiff to take the testimony of a witness in Europe, in relation to the ownership of a- fund of $663, which, it was claimed, was applicable to the payment of the judgment. The plaintiff applied at chambers for leave to issue a commission to take the testimony of such witness.

Cyrus Lawton, for the motion.

Mr. Fullen, opposed.

The plaintiff moves for a commission to examine a witness in supplementary proceedings.

It is conceded that prior to amendment of the Code, in 1860, such a motion could not be granted.

I do not think the amendment of the Code, in section 399, alters that rule. That section, as amended, only applies to the examination of the witness, and extends to special proceedings the right to examine a párty as in an action. It does not allow, a commission to issue for such purpose. There is no other statute which makes such a commission proper. The Eevised Statutes, under which commissions are issued, require issue to be joined.

The law as to commissions for the examination of witnesses, is not altered either by the amendments of 1860 or 1862.

Motion denied.