Fellerman's Case — 2 Abb. Pr. 155

Majority

p. 155

FELLERMAN'S CASE.

Supreme Court, First District; In Chambers,

September, 1855.

Headnote

EXAMINATION OS' JUDGMENT DEBTOR.-SECOND EXECUTION.

Issuing a second execution is not a waiver of supplementary proceedings commenced against the defendant under a prior execution returned unsatisfied.

Motion to dismiss an order for the examination of a judgment debtor.

An execution issued on a judgment rendered in favor of one Lilliendahl against Eellerman, having been returned unsatisfied, thé judgment creditor obtained an order for the debtor’s examination. Before the examination, the creditor issued a second execution on the judgment. The debtor then moved to dismiss the order for the examination, contending that the second execution was a waiver of the supplementary proceedings.

Contrary to my first impressions, I now think that the issuing of a second execution is not a waiver of supplementary proceedings commenced against the defendant after the return of the first execution. These proceedings are a substitute for the creditor’s bill, and are merely auxiliary to the ordinary legal method of enforcing the satisfaction of a judgment. To be sure the Code, like the former law, contemplates that the ordinary remedy should be exhausted before recourse shall be had in the first instance, to the supplemental remedy, and for this reason requires that an execution shall be returned unsatisfied, or that, after an execution has been issued, the defendant has property which he unjustly refuses to apply to the satisfaction of the judgment. But this is not inconsistent with the right after supplementary proceedings are commenced also to issue another execution, if the judgment can be more readily or effectually satisfied.

After filing a creditor’s bill under the old system, the complainant might in this way take out a new execution upon his

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judgment, and levy upon the property of the defendant. ' And should such property be insufficient to satisfy his judgment, he would have been compelled to elect either to dismiss his bill or abandon his execution. In the case of Sale v. Lawson, (4 Sand. S. C. R., 718), decided March 20th, 1852, it was held in the Superior Court, that these rules of the Court of Chancery were as applicable to the examination of a debtor under the Code, as to the proceeding by a creditor’s bill.

In this view I am inclined to concur.

Motion to dismiss order denied, without costs.