Barker v. Cook — 16 Abb. Pr. 83

Majority

p. 83

BARKER a. COOK.

Supreme Court, First District; General Term,

May, 1863.

Headnote

Obdbb of Abbest.—Mode of Execution.—Ibbegulaeity.—Defective Copies.

The provision of section 184 of the Code, which requires the sheriff to deliver a copy of the order of arrest and affidavit to the defendant, upon arresting him, is directory merely. (Per Sutherland, P. J.)

In cases where the opposite party has an opportunity of inspecting an original affidavit, and it is properly signed, it is not necessary that the copy served should contain the signatures of the affiant and the officer, nor that the copy should purport that the original was so signed. (Per Mullen, J.)

The fact that the copy of the affidavit served with an order of arrest does not purport to have been duly signed or verified, affords no ground for vacating the order, or discharging the defendant from custody.

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Appeal from an order vacating an order of arrest.

This was an action by Stephen A. Barker, John Moore, Jr., and Joshua T. Drowne, against William L. Cook, upon two promissory note's, amounting to $1221.33. An order of arrest was granted by Mr. Justice Sutherland, on an affidavit tending to show that the defendant had disposed of his property with intent to defraud creditors. The affidavit was duly signed and verified by one of the plaintiffs, and was filed with the clerk of the court at the time of obtaining the order of arrest. The defendant moved, on an order to show cause, to vacate the order of arrest, without affidavits, on a mere general notice. On the hearing, the ground of his motion appeared to be, that the copy affidavit served upon him at the time of his arrest bore neither jurat nor signatures. This objection was not specified in his order to show cause. Mr. Justice Miller vacated the order of arrest on this ground alone, and discharged the defendant, notwithstanding the plaintiffs raised the preliminary objection that the irregularity was. not stated in the moving papers, as required by Rule 39.

The plaintiffs appealed from this order.

John W. Lewis, for the appellants.

I. The error complained of was at most a mere irregularity, if it even amounted to that. It consisted simply in the omission of a name alleged to be necessary, which is a purely formal defect. (Wilson a. Wetmore, 1 Hill, 216 .)

II. If it was an error at all, it could not have misled or prejudiced the defendant, and ought therefore to have been disregarded, or an amendment allowed nunc pro tunc. (Code, §§ 173,174,176; Courier a. McNamara, 9 How. Pr., 255 ; Jones a. Williams, 4 Hill, 34 ; Bowman a. Sheldon, 5 Sandf., 657 .)

III. This objection not having been specified in the order to show cause, could not be raised on the hearing. The special term had no right to consider it at all. (Pule 39, Supreme Ct. ; Harder a. Harder, 26 Barb., 409 ; Bowman a. Sheldon, 5 Sandf, 657 ; Baxter a. Arnold, 9 How. Pr., 445 ; Whitehead a. Pecare, Ib., 35; Wilson a. Wetmore, 1 Hill, 216 ; Ellis a. Jones, 6 How. Pr., 296 ; Boyd a. Weeks, 6 Hill, 71 .)

IV. But the omission of the names of the deponent and the

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notary at the foot of the copy of the affidavit, was not even an, irregularity. It was entirely unnecessary that they should be there at all. 1. An affidavit need not be subscribed. It is sufficient if the name of the deponent appears in any part of it, as at the beginning, where it did appear in this case. (Jackson a. Virgil, 3 Johns., 540 ; Haff a. Spicer, 3 Cai., 190 .) This is the general rule as to all documents which are not expressly required to be “ subscribed.” The name of the party written by himself, or by his authority, in any part of the instrument, is a valid signature. (Merritt a. Classon, 12 Johns., 102 ; affirmed, 14 Ib., 486.) 2. The copy of an affidavit served need not include the signature or jurat. (Livingston a. Cheetham, 2 Johns., 479 .) “This decision has been followed ever since.” (Graham a. McCoun, 5 How. Pr., 353 .)

V. Looking at the case in its worst aspect, and admitting that the copy affidavit served was a mere nullity, yet the total omission to serve an. affidavit would not be ground for setting aside the order or discharging the defendant from arrest. It has been so held in regard to a failure to serve the order of arrest, which stands at least on the same footing with the affidavit, if it be not of even higher importance. (Courter a. McNamara, 9 How. Pr., 255 ; Keeler a. Betts, 3 Code B., 183.)

VI. The judge at special term had no right to disregard the express decisions of the Supreme Court in 2d and 3d Johnson, and 3d Caines (swpra). (Burt a. Powis, 16 How. Pr., 289 .)

VII. If the defect assigned as the ground of this motion were as serious as it is claimed to be, yet it is one which does not in the slightest degree affect the validity of the order of arrest* but only the arrest itself. The order was granted upon papers to the regularity and sufficiency of which no exception has or can be taken. The original affidavit was duly subscribed. The subsequent service of a defective copy upon the defendant cannot make the order irregular. (Courier a. McNamara, 9 How. Pr., 255 ; Opinion of Clekke, J., in Hart a. Kennedy, 14 Abbotts’ Pr., 432.) The order appealed from is therefore, in any event, clearly erroneous in setting aside the order of arrest. Granting all the defendant claims to be law, he was only entitled to release from an irregular arrest, leaving the order to stand.

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Henry M. Whitehead, for the respondent.

It does not appear from the appeal papers upon what ground the judge at special term vacated the order of arrest. If, as stated by plaintiff’s counsel, he vacated it exclusively on the ground that the copy affidavit served contained no signatures or copy signatures, I think he erred. If no copy or paper purporting to be a copy of the affidavit had been served by the sheriff upon arresting the defendant, such omission would, I think, have been an irregularity only, and would not have entitled the defendant to his discharge. (Keeler a. Betts, 3 Code R., 183; Courier a. McNamara, 9 How. Pr., 255 .)

The provision of the Code, requiring the sheriff to deliver a copy of the order and affidavit to the defendant upon arresting, is directory merely.

The facts stated in the affidavit upon which the order.of arrest was granted to show that the defendant had removed or disposed of, or was about to remove or dispose of, his property, with intent to defraud his creditors, are certainly slight.

The matters stated in the affidavit on which the order of arrest was granted, authorized the order of arrest. But the copy affidavit served was not subscribed by the party, nor did it purport to show that the original paper was signed by any affiant, nor was the jurat signed by an officer authorized to administer oaths, nor did it purport that the original was signed by any such officer. If it was necessary to the validity of the order that these names should appear, from the copy, to have been signed to the original, then the order of arrest was correctly vacated, otherwise not.

In Graham a. McCoun ( 5 How. Pr., 353 ), Justice Willard reversed the practice as to the necessity of serving the signatures of the affiant and officer to an affidavit, and' he came to the conclusion that in cases where the opposite party had an opportunity to inspect the original, and it was properly signed, it was not necessary to annex such signatures to the copy, nor that the copy should purport that the original was so signed; but when such opportunity was not given, as in the verification of pleas in abatement under the former, and of pleadings under

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the new practice, the papers served must contain the signatures, or they may be disregarded. The cases cited by the learned justice sustain his views of the practice.

It follows, that the affidavit in this case is not one which must contain the names.

The copy affidavit served was not void.

If it was regular, the order to show cause did not point out the irregularity, and hence the order could not, under the rules, be vacated for that reason.

I am of opinion the order of arrest was improperly vacated, and the order of the special term should be reversed, with ten dollars costs.

Clerke, J., concurred in reversing the order.

Order reversed.