Hodgman v. Barker

Although we do not entirely comprehend the practice by which this appeal is brought before the court without the evidence upon which the court is supposed to have acted in the disposition of the motion in the court below, the report of the referee being merely advisory, and under no circumstances conclusive, yet it having been assumed that an appeal may be brought, we will dispose of the question.

It must, of course, be assumed that all the facts which appear' In the report as contained in the papers are true; and unless it can be shown that there was error in the conclusion arrived at by the court below, these facts being true, the order must be affirmed.

Upon a careful examination of those facts it would appear that thé position of the counsel for the appellant is that the sheriff and the plaintiff’s attorney, having had. notice of his intention to apply for a stay, were thereby stayed until it might be determined as to whether the court should or should not grant his application; and that it is a violation of an order subsequently granted to do an act inconsistent therewith, because notice had been given of the fact that application was to be made for such an order.

We are not aware of any rule by which an order becomes operative before it is made or that a stay of proceedings necessarily follows the notice of the attorney that he is about to apply for the same.

The evidence shows that the money was paid over before any order was made or served and that it had been receipted for upon the execution before the service of any such order, and before the application which is referred to in the order granting the stay had been made. The mere deposit of the check by the attorney in his bank was not an application of the money.' It liad been received and applied before the order was served, and hence was not within the stay which had been granted.

It is urged that the plaintiff’s attachment is void, and that ■therefore the sheriff was. not authorized to act. But even if that were so, how can the appellant here raise any such question? It had been decided and was the law at the time this stay was ■granted that the appellant had no standing in court to attack such attachment; and there is nothing contained in the referee’s findings to show that there had been any change in its position.

It seems to us, therefore, whatever view is to be taken of the ■question presented, that the appellant is not in a position to complain of the payment in question.

The order should be affirmed, with .ten dollars costs and disbursements.

O’Brien and Patterson, JJ., concur.