Seward v. Wales

The county court has authority to discharge an imprisoned debtor from arrest, but that authority is not appurtenant to its general jurisdiction. It is derived solely from the statute, which requires that certain proceedings shall be taken to warrant the granting of such an order. The order for discharge is

. Let us apply this rule to the case before us. The order is issued by the county court of the county of Broome, and requires the sheriff of that county to discharge from arrest William S. Legge, an imprisoned debtor, then in his' custody. Such order recites that a petition for his discharge had been presented to that court by said Legge, and also recites the statements contained in that petition sufficiently, perhaps, to show that it was such a one as is required by section 2202 of the Code of Civil Procedure. There is, however, no recitation that any schedule whatever was annexed to such petition, as required by section 2203, nor any affidavit, as required by section 2204. Neither is there a recitation in such order that there was any statement in the petition, or in any papers presented with it, showing facts which would excuse the presentment of such schedule and affidavit. It is suggested that the recitation in the order that a petition was filed is equivalent to the statement that the requisite schedule was also annexed. To this I cannot accede. The schedule is no part of the petition. It is a distinct paper. In section 2203 it is so considered,—one which must be annexed to the petition, and presented therewith. So, in sections 2204 and 2208, the petition and schedule are recognized and referred to as distinct papers. Clearly, a petition might be presented containing all that is required to be in the petition, and yet the schedule be left off. In this case the order

But the sheriff was at liberty to prove on the trial that, as matter of fact,' the requisite proceedings had been taken, although all were not recited in such order. Has he done so ? One of the prerequisites to jurisdiction of this case was that a schedule, such as is specified in. section 2203, and an affidavit, as required by section 2204, be annexed to the petition, and presented with it to the court. Until that was done, the court had no jurisdiction to entertain the application, or take the proofs which the parties might present to it. On the trial of this action the sheriff established the fact that the affidavit was so presented, but it was conceded that no schedule whatever was annexed to or presented with the petition. It was contended, however, that, in lieu of the required schedule, there was a statement in the petition that the debtor did not at the time of his arrest, nor at any time since, own any property whatever, and that, therefore, the schedule might properly be dispensed with. But the statement iff the petition upon that subject is as follows:

“That said, judgment debtor, at the time of said arrest, and at all of the time and times thereafter, has had no property not exempt by law from levy and sale under an execution, out of which a judgment for any amount can be satisfied, and is unable and without means of paying or satisfying said judgment in whole or in part.”

The statute requires the schedule to contain a just and true account of all the debtor’s property, and of all charges affecting the same, as they existed at the time he was first imprisoned, and also as they exist when thé petition is prepared, etc. The account required to be given in the schedule is of all his property. The statement given in the petition is of such property only as is applicable to the satisfaction bf a judgment. In the schedule, a statement of actual existing facts is required. All property is to be entered therein that the debtor owns, whether he claims it to be exempt or not, whether incumbered to its full value, and more, or not. In the petition the statement resolves itself into an opinion of the debtor that he has nothing which is properly applicable to the satisfaction of a judgment. Clearly, such a statement is not the equivalent of the account required to be furnished in the schedule, nor does it show that the debtor had no such property as is required to be stated in the schedule. If the debtor had personal or real property heavily incumbered by mortgage, he might be of the idea, and therefore state, that it was not property out of which a judgment could be satisfied. Yet the creditor would have the right to know what the property and incumbrance were, and to be his own judge of its value. Also the schedule would inform him just what property the debtor considered exempt. Under

It is further claimed that it is recited in the order that it appeared on the examination that the debtor had no property whatever, and that, therefore, the omission to present a schedule with the petition is cured. If the order contained such a recitation, it would be of no avail, because the examination was utterly unauthorized, and whatever occurred thereon would not give the court jurisdiction to enter upon it. But there is no such recitation in the order. It follows the language of the petition, and says that it appeared that he had no property “out of which a judgment could be satisfied.” It cannot be claimed that the judgment creditor has waived anything in these proceedings. The notice served upon him was annexed to a petition, and was to the effect that upon such petition an application would be made to the county court, on a day therein specified, for the discharge of the petitioner from arrest. On its face such petition was insufficient to give the court jurisdiction, and the creditor had the right to assume that no proceedings would be had under it. An omission to appear under such a notice could hardly be deemed a waiver or a default.

I am of the opinion that the judgment appealed from should be reversed, and a new trial granted; costs to abide the event. All concur, except HEBBICK, J., dissenting.