Thompson v. Culver — 38 Barb. 442

Majority

p. 442

Thompson vs. Culver.

Headnote

A motion to set aside an attachment may be made after judgment has been entered.

Even if such a motion could not be made after jugdment, yet if a motion is noticed and actually made in time, but a final hearing and decision thereon is delayed by a reference, until after the entry of the judgment, the order may then be entered.

THIS was an appeal from an order made at a special term, denying a motion made by the defendant to set aside the attachment issued by the plaintiff. The attachment was issued on the ground that the defendant had absconded, or kept himself concealed, to avoid the service of civil process.

The attachment was issued on the 12th of February, 1862, and was served on the 14th of February. On the 12th of March, following,1 an order was granted to show cause, on the 25th of the same month, why the attachment should not be vacated. The facts involved in the hearing of the motion, on the order to show cause, were referred to a referee to hear and report the evidence with his opinion thereon. The hearing was had on the 21st of April, 1862. The referee reported the evidence with his opinion, substantially, that the facts did not sustain the attachment. The defendant sought to have the time extended for entering judgment till after the decision of the motion to set aside the attachment, but ultimately failed, and judgment was perfected against him, on the 10th of April, 1862. On the 10th of May the sheriff sold the attached property on the execution issued upon the judgment.

W. Fullerton, for the appellant.

G. Dean, for the respondent.

Two points are made by the plaintiff against the motion. First, that it occurs too late— a judgment having been perfected prior to the hearing of the

p. 443

motion; second, that the defendant did in fact keep himself concealed, with intent, &c.

[New York General Term,

November 18, 1862.

As to the first point. If the position be sound, that such a motion cannot be made after judgment, yet this motion having been noticed and actually made, confessedly, in time, the extension of time caused by the reference will not make it irregular, though the hearing be not completed till after judgment.

But in my opinion it is not indispensably necessary that the motion should be made before judgment. A very learned and respectable court has declared that the attachment is discharged, ipso facto, by the entry of the judgment. But I can find no provision in the code to that effect. On the contrary, there are provisions entirely inconsistent with such a position. Among other provisions, the statute declares that “until the judgment against the defendant shall be paid”—not recovered—but until it “shall be paid,” the sheriff may proceed to collect the notes and other evidences of debt, and the debts that may have been seized or attached under the warrant of attachment, and apply the proceeds thereof to the payment of the judgment.” (Code, § 237, subd. 4.)

It is clear that the sheriff has no such power under the execution. He has it, obviously, under the attachment, which therefore cannot be said to be superseded by the judgment.

The facts, as disclosed by the affidavits and the evidence before the referee, show that there was no ground for the attachment. The order appealed from should therefore be reversed, and the attachment discharged, with $10 costs.

Ingraham, Peckham and Leonard, Justices.]