Niagara Grape Market Co. v. Wygant

The opposing parties upon this appeal claim under separate warrants of attachment against the defendant, and the appeal is taken from an order awarding to the warrant sued out by plaintiff priority over one procured by the firm of Hertzog Bros., who are the appellants. The facts are not in dispute. The warrant of the Hertzogs was granted by a judge on the evening of December 3d. On the morning of the 4th of December, at an early hour, the plaintiff caused an application for a warrant of attachment to be made to a justice of this court, at his house. The papers were presented to the justice by a servant. The warrant was signed by the judge, and the papers were handed by the servant to the plaintiff’s messenger, who examined them, and, noticing that the original warrant was not among them, asked for it, but was told that the judge had kept it. In fact, the judge had retained it by mistake, intending to keep the original bond, that he might cause it to be filed, but keeping the warrant instead. The young man went away with the papers which had been handed to him, which did not include the original warrant of attachment. At 9 o’clock, the hour at which the sheriff’s office was open, the bearer of each set of papers made his appearance. The plaintiff’s attorney presented to the sheriff the papers upon which the application for his warrant had been made, with a copy of the warrant, which was marked No. 1. The warrant of Hertzog Bros, was next received, and marked No. 2. Both were received at the same time, and so stamped. The original warrant in plaintiff’s action, which was then in the hands of the judge, was procured from

It might, perhaps, be sufficient to say that, as no levy is shown to have been made, and it does not appear that it will be made, or that, when made, the property will not be sufficient to pay the amount of both warrants, the order is prematurely made. But to reverse it upon that ground would leave the same question to arise upon the distribution of the fund, and therefore we have concluded to examine the merits.

The law says that, when two or more warrants of attachment against the same defendant are delivered to the sheriff of the same county, to be executed, their respective preferences are the same as where two or more executions against the same defendant are delivered to the sheriff of the same county. Code Civ. Proc. § 697. In the case of two executions, that one has preference which is first delivered to the sheriff. Code Civ. Proc. § 1406. But the warrant delivered must be one on which the sheriff can act, because, if it is incomplete, or invalid for any reason, so that he cannot proceed upon it and make a valid levy, the plaintiff can acquire no rights under it, and, of course, can have no lien by virtue of it. The sheriff could not act upon the copy of the warrant which the plaintiff delivered to him. If there had been nothing else, no one would claim that any rights could be acquired under it, as against an original warrant, which the sheriff afterwards received, to be executed. But it is said that there was an original warrant, only, instead of having been delivered to the sheriff, it was kept by the judge who had signed it, and was not, in fact, delivered by him to any one. The question is then presented whether the failure to deliver the warrant was fatal to its validity. The fact that the failure to deliver was caused by the mistake of the judge does not affect the case. When the party claims a right in an action at law, he is bound to make it appear that the officer through whose act the right comes into existence has jurisdiction to act; and, if jurisdiction depends upon a valid process, it must be shown to have existed. To create such a process, it must have been fully completed. While the application for it is still sub judice, it has, of course, no force. Neither has it, after the officer has decided the case and concluded to grant it, until he has expressed that conclusion by some act which brings the writ into existence. Especially is this so where, as in this case, there had been no service of the summons, and there was jurisdiction only by the granting of the warrant under section 416 of the Civil Code. To the completion of such an act, it is, we think, necessary, not only that the manual signing should have taken place, but that the warrant so signed should have been by the judge actually delivered to the party, or the officer whose duty it is to execute it. So long as he

It is not necessary to consider the matter- further. For the reasons above stated, the order must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs to the appellant. All concur.