Gould v. Torrance — 19 How. Pr. 560

Majority

p. 560

SUPREME COURT.

Anthony Gould and others agt. Jared S. Torrance and others.

Headnote

Where a justice of this court makes an order in supplementary proceedings for the examination, before a referee, of judgment debtors residing within his district, the judgment being docketed and the venue laid in another judicial district, an order made by such justice denying a motion to set aside the order of reference should be entered, and the appeal therefrom heard in the district where the venue in the judgment is laid.

Albany General Term,

September, 1860.

Present, Gould, Hogeboom and Peckham, Justices.

An order in supplementary proceedings was made by Hon. Noah Davis, Jr., a justice of this court, residing in the eighth district, on the 24th day of February, 1860, appointing Dennis Bowen, Esq., of Buffalo, referee, and ordering defendants to appear before said Bowen on the 28th day of February, 1860, for examination. On the 29tl) day of March, 1860, defendants made a motion before Justice Davis, at Chambers, in Erie county, for an order vacating said order of reference. The motion was denied, and the order was at first entered in Erie county. Afterwards the plaintiffs filed and entered the order with the clerk of this (Albany) county, June 4, 1860. Defendants appealed by giving the requisite notice. The plaintiffs now move the appeal for argument. Defendants odject, preliminarily, to its being heard here, insisting that it should be heard in the eighth district. The venue was laid in Albany county, where the record of judgment was filed, and still remains. The defendants reside in Erie county, where the examination was ordered by Justice Davis to be heard.

Otis Allen, for plaintiffs.

J. K. Porter, for defendants.

It is decided that proceedings supplementary to execution are proceedings in the cause; a sort of additional or equitable execution, that penetrates further than an ordinary execution. (Bank of Genesee agt. Spencer, 15 How., 412 ; Ross agt. Clussman, 3 Sand., 616.) I do not think it would be claimed that a motion could be made to set aside an execution in any other district than that in which the venue is laid. It clearly should be made there. Some inconvenience may attend this rule, but much confusion would follow any other. I am of opinion that the appeal is properly brought here, and must be heard upon its merits.