Woodmansee v. Rodgers — 59 How. Pr. 402

Majority

p. 402

COURT OF APPEALS.

Luman Woodmansee et al., appellants, agt. Amos S. Rodgers, respondent.

Headnote

Attachment— Qode of Oiml Procedure, section 682—What is an actual appliúation of attached property under this section—Vacation of, by subsequent attaching creditor..

A mere levy under an execution is not such an actual application of the attached property or the proceeds thereof, under section 682 of the Code of Civil Procedure, as to bar the right of the subsequent lienor to move to vacate the same, as .provided in this section.

. The language of this section of the Code means an actual and real application of the property or its proceeds, as distinguished from a constructive one.

While the property remains, before it has been actually transferred to the plaintiff, or in case of sale, before its proceeds have gone to him, it is possible for the court to control and determine the liens upon it, fixing their order and enforcing their payment on the one hand, or discharging or removing them on the other (Affirming S. 0., 58 How., 489 ).

September, 1880.

The plaintiffs obtained an attachment against the property of the defendant on October twentieth. On the twenty-second they obtained judgment and levied execution. On the twenty-first of October, Weil Bros, levied an attachment. After judgment of plaintiffs, Weil Bros, moved to vacate the attachment of plaintiffs. The latter contended that the former were too late with the motion, as plaintiffs had levied an execution, which amounted to an actual application of the attached property to the payment of the judgment.

Judge Beady, at special term (see 58 How., 98 ), overruled this objection and set aside the attachment. This decision was sustained at general term in an opinion delivered by judge Davis (see 58 How., 439 ), whereupon plaintiffs appealed to the ■court of appeals.

p. 403

Otto Sowitz, for appellants.

JBlumensteil <& Hirsoh, for respondent Weil Bros.

— The plaintiffs obtained an attachment against the property of the defendant on the 20th day of October, 1879, and on the twenty-second of the same month perfected judgment in their action and issued execution, under and by virtue of which the sheriff levied upon the property of the defendant upon the same day.

The firm of Weil Bros, obtained a warrant of attachment against the property of the defendant, which is conceded to have been subsequent in point of time to that obtained by plaintiffs, although its date in the printed case is October 2, 1879. The date is probably a mistake, for the argument went upon a distinct concession, on both sides, that as against the plaintiff the firm of Weil Bros, were subsequent lienors.

On the 28th of October, 1879, the latter moved to vacate the plaintiffs’ attachment, which motion was granted, and the order affirmed by the general term. The sole question presented here is whether, under section 682 of the Code, the subsequent lienors had the right to move in face of the fact. that the defendant’s property had already been levied upon by virtue of the plaintiffs’ execution. The Code provides that the subsequent lienor may make the motion, “ before the actual application of the attached property or the proceeds thereof to the payment of a judgment recovered in the action.”

We think the conclusion of the general term—that a-mere levy under an execution is not such actual application as to bar the right of the subsequent lienor to move — was correct. While a levy upon sufficient property has often been held to be payment of the debt, and to extinguish the judgment, it is only constructively so, and with reference to the equitable rights of others, and the judgment may nevertheless not be in fact paid. We think the language of- the Oode, in the sec

p. 404

tion referred to, means an actual and real application of the property of its proceeds, as distinguished from a constructive one. The reason of the rule plainly leads in this direction. While the property remains, before it has been actually transferred to the plaintiff, or in case of sale, before its proceeds have gone to him, it is possible for the court to control and determine the liens upon it, fixing their order and enforcing their payment on the one hand, or discharging or removing them on the other. No evil can result, unless from a delay - which has in fact transferred the property or its proceeds upon a lien fully and completely enforced. That evil was the one at which the provision of the section in question was aimed, and it does not exist where there is merely a levy under which neither the property nor its proceeds have actually and in fact passed to the creditor. That seems to us to be the true construction of the section, and it follows that the order should be affirmed.

AE concur.