Hasewell v. Penman — 2 Abb. Pr. 230

Majority

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HASEWELL a. PENMAN.

Supreme Court, First District; Special Term,

November, 1855.

Headnote

SUPPLEMENTARY PROCEEDINGS.-DEATH OF JUDGMENT DEBTOR.

Where an order for the examination of persons alleged to be indebted to a judgment debtor was made, and it appeared upon the appearance of the parties for examination, that the debtor was dead at the time when the order was made, — Held, that the proceedings were abated by his death.

Application to discharge certain parties from examination on proceedings supplementary to execution.

The facts in this case appear in the opinion of the court.

Schell and Hutchins, for the application.

C. N. Potter, opposed.

I. The proceedings are supplemental and ancillary to execution, not independent in any way, and are designed to help out the execution. Where the execution debtor dies after execution issued, it binds the property which was his at his death, and proceeds in all respects as if he were alive, (2 Cowenis Treatise, 514 ; Tidd’s Pract., 915 ; 1 Cowen, 334, note h, Osborn v. Moss, 7 Johns, 161 ). And there is no reason why proceedings intended as ancillary to execution should not proceed in the same way.

II. The proceeding is one solely for% discovery. No notice to the defendant is necessary, by statute, except when specially directed by the court for the protection of his rights. If this should prove to be a case in which, were the defendant alive, he ought to have notice, the notice can be given his representatives and the purpose of the statute thus be entirely fulfilled.

III. Death is in law but a legal transfer-of a man’s property to his representatives, subject to his liabilities. If a debtor after execution issued should transfer all his property in that wise, such a proceeding as this would not abate it, but, if proper, notice would be required to be given to his as-signee. Death only abated suits because there was no person before the court to give judgment against. Even had

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the statute required defendant to be made a party to this examination, inasmuch yet as this is a proceeding, (supplemental to execution), in the original action, the death of the party would not abate it, but it would proceed on substitution of his proper representatives. (Code, § 121). But by statute this is solely an ex-jparte and distinct proceeding against creditors for discovery only, not effecting in any wise defendant’s rights, and to which he is no accessory party. Its object is not to affect the title to, or take, property, but simply to put plaintiff in the way of finding it. (Code, § 294; Kemp v. Harding, 4 How. Pr. P., 179).

IY. In any event it is not for the creditors to make objection.

Judgment was recovered in this action, in King’s County, against the defendant, on November 29, 1854, and an execution was issued thereon in King’s County, and returned before January 16, 1855. On the last mentioned day, an order for A. Hughes, Andrews, Shepard, and others to appear before the county judge of King’s County, and answer whether they had property of the defendant, was made, and was served on Hughes. He did not attend, and a like order was issued and served on him and Andrews, returnable May 14, 1855. By consent the examination was adjourned to May 22, and again to June 4, when Andrews failed to attend; he was afterwards partially examined.

It now appears that the defendant died on May 6, 1855, and Hughes swears that he has no property belonging to the defendant or his estate, and that he is not indebted to his estate in any way. The proceedings to examine the parties in this district were commenced in September last, after the death of the defendant. It also appears that no order was ever taken out to compel the defendant to answer as to his property, and no injunction ever served on him, he residing and being in North Carolina.

The object of the examination under this proceeding, is, either to obtain the discovery of property liable to execution, and subject it to the execution or control of a receiver, or to obtain the discovery of choses in action and to have them

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collected by assignment from the defendant, or through a receiver, or by order applied to the satisfaction of the judgment.

A judgment creditor’s bill would abate by the death of the defendant, so far, that the action could not be continued until his representatives should be made defendants. Yarious provisions were made in the Eevised Statutes, to prevent such an abatement of the suit as would require the plaintiff to begin his action anew, and to enable him to proceed in the revived action against substituted parties; and the same thing is accomplished by section 121 of the Code. But neither the Eevised Statutes nor the Code allow proceedings before the court or a judge, to be continued and prosecuted after the death of a sole defendant, until his representatives are brought in. If process has been delivered to an officer like the sheriff, and he has obtained by relation, or in fact, in the life time of the judgment debtor, a lien on goods by the receipt of the process, he may proceed and sell, because he acquires a special property in the goods, which the subsequent death cannot take away. But it is different when an action or a proceeding in the nature of an action is to be prosecuted before a judge. There nothing can be done until the representatives of the decedent be brought in.

In this case, the inquiry is not to discover property liable to an execution, but choses in action which the execution could not touch, and which can be reached only by an actual suit, or by this proceeding which is a substitute for a suit in equity. It was said this proceeding was ancillary to the execution. It can be called so only when the object of it is to obtain a disclosure of property liable to execution. The language of the Code is more proper; the proceeding is supplementary to the execution, not a mere handmaid or assistant to the execution in its regular duties, but a further proceeding in court to supply the defect in the execution, and to gain furthur relief which the execution could not give.

The proceedings against the debtor of the judgment debtor is under section 294 of the Code, and must be founded upon an affidavit that the person to be cited has property of the judgment debtor, or is indebted to him, and the judge may

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in his discretion require notice to be given to any party to the action. Then by section 297 the judge may order any property due to the judgment debtor, to be applied towards satisfaction of the judgment, or (§ 298), may appoint a receiver of the property of the judgment debtor. If the judgment debtor is dead, the judge cannot give notice to him, although he may determine that it is not proper to examine his alleged debtor without the presence of his representatives, and he has no authority to make those representatives parties to the proceeding. He cannot then give the notice which he may deem essential to do justice, and which section 294 intended he should in such case give. The property ceases to be the property of the judgment debtor on his death. The judge then, on such death occurring, has no jurisdiction to issue the order or to examine the persons cited, as they are not indebted to the deceased, nor to make any order after such examination, for he can only order the property of the judgment debtor to be applied towards satisfaction of the judgment, or a receiver to be appointed of it.

Whenever such circumstances occur that an examination cannot result in any right to make the order for which the examination is intended, then the right to the examination ceases; the examination is not for the sake of discovery merely, it is granted only as the foundation for relief to be granted by the judge ordering the examination.

If the orders made in King’s County have given a lien, that lien will probably be saved in an action, but this proceeding was unauthorized in this district, as the defendant was dead when it was commenced, and it would have been abated had he died after it was commenced.

The parties cited are therefore discharged from any further examination.