Courtois v. Harrison — 1 Hilt. 109

Majority

p. 109

Hector Courtois v. L. F. Harrison, Treasurer of the Young Men’s Democratic Union Club.

Headnote

In. supplementary proceedings, the judge at chambers, before whom the order ¿s returned, may vacate it on motion of the summoned party, if the affidavit on which it is founded is insufficient, or if for any reason it appears to have been improvident!}' granted.

p. 110

It is too lato, after judgment against a defendant as treasurer of a joint stock association, and in supplementary proceedings to enforce the payment of tbe judgment, to raise tire objection that they are not such an association within the ' meaning of the statute.

Nor can this court, in such proceedings, founded upon a judgment of the Marine ■ Court, go behind the record, and take into consideration affidavits, or the judge’s certificate, that he ordered judgment against the defendant individually, and that it was entered against him as an officer of such association by mistake. If such an error has been committed, application for relief must be made to the court in winch the judgment was rendered.

Proceedings supplementary to execution, under § 294 of the Code, may be taken, to compel the treasurer of a joint stock association to submit to an examination, upon the allegation that he is indebted to it, though the judgment is entered against him as treasurer of such association, and the action was commenced by the service of summons upon him under the act of 1849.

& Appeal from an order dismissing an ordef for the examination of a debtor of a judgment-debtor in supplementary proceedings. The plaintiff recovered a j udgment in the Marine Court, which was entered there, and subsequently docketed against L. F. Harrison, Treasurer of the Young Men’s Democratic Union Club. Execution was issued upon tbe judgment. While it was still in tbe bands of tbe sheriff, tbe plaintiff, on tbe usual affidavit, that L. F. Harrison bad property of tbe defendant’s in bis possession exceeding $10 in value, obtained an o;’der for bis examination. Upon the return of this order Harrison moved to dismiss it, and to sustain the motion offered in evidence an affidavit and the certificate, of the judge who tried the cause, for the purpose of showing that on the trial it was objected that tbe Young Men’s Democratic Union Club did not constitute a joint stock association, within tbe meaning of tbe act of 1849, and that no action could be maintained against L. F. Harrison as treasurer thereof. That the objection was sustained, but that the judge ordered judgment against L. F.Harrison personally; ' These papers the judge before whom the motion was made refused to consider. But be dismissed the order upon the ground tbat the provisions, as to supplementary proceedings, did not apply to the ease of a judgment against a joint stock association. From this order the plaintiff appealed.

p. 111

Louis IT. Pignolet, for appellant.

Edw. W. Cone, for respondents,

cited Morgan v. N. Y. and Albany B. B. Co., 10 Paige, 290; Hinds v. Niagara Falls B. B. Co., 10 How. Pr. R. 487, to tbe proposition that supplementary proceedings could not be taken against a corporation.

Tbe plaintiff recovered against tbe defendant a judgment in tbe Marino Court, under tbe statute of 1849, chapter 258, and filed a transcript with tbe county clerk. After issuing an execution, be commenced supplementary proceedings to enforce tbe payment thereof. The order obtained was against L. E. Harrison, as a person having property in 1^ possession of the judgment-debtor’s exceeding in value $10. On the return of the order, the judge at chambers, on defendant’s motion, discharged it, from which the plaintiff appeals.

There is no force in tbe objection, that the judge could not, on the papers, discharge the order. These orders are granted ex parle, and the first opportunity the defendant has to be heard is on the return of the order. If the affidavit on which the order was granted was insufficient, or if for any cause the order was improvidently made, the judge ought to vacate it, and it is the right of the defendant to have such a motion under such circumstances granted.

There may be some doubt whether the Young Men’s Democratic Club is a joint stock company or association within the meaning of the statute. It can hardly be contended that every political association or committee is to be considered a joint stock association. But whether it is so or not, it is too late for the defendants in this proceeding to raise the objection. It should have been done on the trial, and, if overruled there, the defendants should have appealed. Not having done so, the judgment on this proceeding is conclusive against them.

It is said, however, that the judge did so decide, and ordered judgment against the defendant Harrison individually, and affidavits and the judge’s certificate to that effect are submitted.

p. 112

Tbe judge rightly disregarded these papers. If the judgment was erroneously entered up in the Marine Court, we .cannot go behind that judgment and correct errors which can only be done by that court. The defendants must apply to the Marine Court for relief. The only question, therefore, that is of any importance on this appeal is, whether this proceeding can be resorted to upon a judgment recovered against a joint stock association under the statute of 1849.

It is settled, that if the judgment was against a corporation, the remedy by supplementary proceedings is improper, and that the plaintiff .should resort to the remedy provided by the Revised Statutes. Hinds v. The Canandaigua and Niagara Falls W. R. Co., 10 How. Pr. R. 487.

The judgment in this case is not against any individual. It is against the club-only as a joint stock association. The members of that club are not defendants, any more than stockholders in a corporation are defendants when the action is brought against the corporation. They are not personally liable, nor can their individual property be reached by such a judgment. If it were otherwise, it would be a very unnecessary provision in the act to reserve to the plaintiff the right to proceed against the individual members, as is prescribed in the fourth section. The insertion of the name of the treasurer as defendant does not make him in any way responsible, but merely provides for commencing the action in the same way as the free banking statute directs that actions may bo commenced against the president of the institution as such. In neither case does any personal liability attach to the individual. This proceeding, then, is under the 294th section of the Code. It does not limit the remedy to any county in which the debtor resides, nor is it required that it should appear in the affidavit that the execution has been issued to the sheriff of such county. Such has been the construction given to this section in The People v. Norton (4 Sand. S. C. R. 640).

The reasons assigned by the court, why proceedings cannot be taken under section 292 against the corporation, have no appli

p. 113

cation to section 294. The judge says that section 292 “ provides for tbe order wben tbe execution lias been issued to tbe county where the debtor resides, &c. This evidently refers to a judgment against a natural person, who has, or is capable of hav-iug a residence, &c.” “ A corporation, being a mere artificial being, can have no residence; and this jurisdictional fact can never be shown in the case of an execution against such a defendant.”

In section 294, no such jurisdictional fact is necessary, and there is no difficulty in complying with all the requisites of that section against a corporation or joint stock association, as well as against individuals. The case is a stronger one also against joint stock associations, because the provisions of the Reviví Statutes as to the sequestration of the propertj'- do not apply to any other bodies than corporations; and if this section is held to be inapplicable to such associations, there is no means of enforcing the payment of such judgments except by execution.

It is said that Harrison, against whom the order was made, is a defendant, and therefore not subject to such an examination. I have already remarked that the individual members are not defendants, and cannot be proceeded against as such. Any one of them who holds the property of the association may, I think, be examined, whether named as an officer or not. -The object is, to ascertain the property of the association, not of Harrison, and the examination should be confined to that limit.

I think the order appealed from should be reversed, and the witness be required to submit to an examination.

As the question is new, no costs should be allowed on this appeal.

Order reversed.