Van Camp v. Searle

—The purpose of the action is the determination of the rights of the parties, other than the defendant Searle, as sheriff, to the proceeds of the property of Benjamin Yan Camp. He was treated as an absconding debtor, and, in more than 20 actions instituted against him, warrants of attachment against his property were issued," and delivered to Searle, the sheriff of Orleans county. Some of them were levied upon his personal property, and the others, and the most of them were levied upon both real and personal property; and although, after the levy of the attachments, a large number of judgments were entered upon his confession, the controversy in this action has relation merely to those parties in whose behalf attachments were issued, and levied on the property of the debtor. The defendant Searle, as sheriff, paid out of the proceeds of the personal property the amounts of the judgments recovered by defendants Mary J. Blood, Dellie W. Blood, Bidelman, Chester, Coann, and Rice, and returned the executions issued upon their judgments “Satisfied.” He also paid to defendant Brumer $96.65 of the amount of his execution. Warrants of attachment were issued in the actions in which those judgments were recovered, and the levy of them by the sheriff upon the personal property was prior to that in behalf of any other of the parties; and those payments, with the sheriff’s fees and poundage, exhausted all the proceeds of the personal property, except $110.82.

The payment of the executions in favor of the defendants Blood is challenged for the alleged reason that their warrants of attachment had not the support of affidavits sufficient to justify their issue, and a like objection is made to the order for service of the summons by publication. The affidavits to obtain these attachments were alike in their provisions, and while they stated that Yan Camp had departed from this state with the intent to defraud his creditors, and to avoid the service of a summons upon him, they failed to state any facts tending to support such charges, and were therefore insufficient to protect the attachments, against a motion to vacate them. But no such motion was made, and as the money has been paid upon their judgments and executions, in discharge of the lien, the question of the insufficiency of the affidavits is not, as against those parties, available to the appellants. Code Civ. Proc. § 682 ; Woodmansee v. Rogers, 82 N. Y. 88 . As the summons in each of those actions were served by publication, the sufficiency of the affidavits was essential to bring the actions within the jurisdiction of the court; and if they did not come up to the statutory requirement in support of the order of publication the judgments were void, and the plaintiffs in them acquired no rights under or through mesne or final process in their actions. Fischer v. Langbein, 103 N. Y. 84 ; 2 St. Rep. 768 . The view taken is that the affidavits upon which the order of publication

The objection urged against the application of the payment to the satisfaction of Bidelman’s execution relates only to the sufficiency of the affidavit upon which the attachment was issued. So far as the defendants Bidelman, Chester, and Bice are concerned, what has been said about the payment of the executions of the Bloods is applicable to them, and in a like manner to the amount paid upon defendant Bruner’s execution. As Coann is not a party to this action, no inquiry is required about the payment of liis execution ; and, so far as the processes which came to the hands of the sheriff were regular on their face, he was justified in the execution of them. Savacool v. Boughton, 5 Wend. 170 ; Sheldon v. Van Buskirk, 2 N. Y. 473 ; Woolsey v. Morris, 96 N. Y. 315 . The first executions which carne to him upon the judgments of defendants Blood were general executions provided for by § 1369 of the Code, and he paid them. Afterwards, and before those defendants became parties to this action, they refunded to defendant Searle the amount so paid them, and thereupon special executions, according to the provisions of § 1370, were issued to him, and lie paid to them, thereupon, respectively, the amounts of the executions. The former were irregular, and the latter were regular upon their face, for the purpose of collection or payment from the proceeds of the attached property. The error was cured by the refunding of the money, and the issue of the executious in proper form, and the satisfaction of them, although, by expiration of the term of his office, the defendant Searle had ceased to be sheriff at the time the second executions were issued to him. Code, § 706. The proceeds applicable to the discharge by payment of the liens of their attachments may be deemed to have been held by him for that purpose until paid in satisfaction of the executions, which were regular in form, issued to him. Lynch, v. Crary, 52 N. Y. 184 . And there seems to be no difficulty about the regularity, on their face, of the attachments and executions of the parties to whom the payments were so made, other than the attachment of the defendant Bidelman and the execution of the defendant Bruner. In that attachment it was recited that it appears by the affidavit “that the said defendant has absconded from the county of Orleans, the place of his residence, with intent to defraud his creditors.” The statute provides that the warrant “must briefly recite the grounds of the attachment.” Code Civ. Proc. § 641. The recital in the Bidelman. attachment is not a statutory ground for the issue of such process. Id. § 636. In the affidavit upon which it was issued, the ground stated for the application is that Van Camp had departed from this state, where he resided, with the intent to defraud his creditors; and some facts and circumstances are there mentioned, intended to support that allegation, and, although somewhat slender, they are such as to justify that conclusion, and give support to the attachment. For that reason the incomplete recital in the process is not fatal to its validity.

The execution issued upon the judgment recovered by the de

The executions of the attaching creditors Keeler & Salisbury and Kelsey, as administrator, etc., were on the day of, and prior, to, the sale, withdrawn from the sheriff, and immediately after the sale, executions upon their judgments were placed in his hands. It is urged on the part of the appellants other than the plaintiff and Keeler & Salisbury that those creditors, by withdrawing the executions, denied to themselves the right to have their judgments paid from the proceeds of the sale. This is so, unless the levy of their attachments saves their right to share in such proceeds. The executions evidently were withdrawn to enable those creditors to redeem the property from the sale, if they should be so advised. This they could not do if their executions had remained in the sheriff’s hands at the time of the sale, as then the sale would have been made on them, as well as the others held by him. Code Civ. Proc. § 1457 ; Ex parte Paddock, 4 Hill, 544 . But those whose executions were withdrawn were attaching creditors, and their attachment leins were prior to those of the other appellants; and assuming that the premises were sold upon the execution

It is insisted that the judgment recovered by Cornelia Brown against Yan Camp was not effectual to support the execution issued upon it, or to require the payment of it by the sheriff,— because it had been set off against an equal amount of judgments of Yan Camp against her. This had been done by an order of the court, on his motion, but the order provided that such offset should not prejudice any lien which the defendants Keeler & Salisbury had upon the Brown judgment. They, as appears by the evidence, and facts found by the court, were attorneys and counselors at law, constituting the firm of Keeler & Salisbury, and as such had rendered services and paid out money for her in the action in which the judgment was recovered, and in other actions relating to the subject-matter of that action; and such services rendered and disbursements made by them for her, and at her re quest, were at least equal in valué and amount to that of such judgment. They may be regarded as the equitable assignees of the judgment. Haight v. Holcomb, 16 How. Pr. 160 . And they liad the right to make it available, by process of execution, to satisfy their lien charged upon it Code Civ. Proc. § 66; Martin v. Hawks, 15 Johns. 405 ; McGregor v. Comstock, 28 N. Y. 240 : Goodrich v. McDonald, 112 N. Y. 157 ; 20 St. Rep. 509 . Those attorneys did not consent that any set-off be made of the judgment,

It is urged by the learned counsel for the appellants the bank and Sawyer that the cause of the Kelsey action was not such as to permit the issue in it of the attachment in his behalf. Prior to the time of the commencement of that action, Benjamin F. Van Camp liad been the executor of the last will and testament of Amos Kelsey, deceased, and, having failed to render his Account as such, and left the state under the .circumstances which he did, his letters testamentary were by the surrogate revoked, and Adason Kelsey was appointed administrator with the will annexed; and thereupon the latter, as such administrator, commenced his action against Van Camp, and caused an attachment therein tobe issued against his property. The complaint was of considerable length, and by it, among other things, the plaintiff alleged that Van Camp, having property and money of the Kelsey estate' in his hands, had been required and failed to render to the surrogate his account; that he had been removed from his position of trust, as executor, and the letters testamentary issued to him revoked; and that he had “ wrongfully and unlawfully disposed of and converted the said piroperty and money to his own use, to the damage of the estate of the said Amos Kelsey, in the sum of ten thousand dollars.” Judgment against him was demanded accordingly. The ground of the attachment, as recited in it, was that the action was brought to recover “ a sum of money only, as damages for wrongful conversion of personal property, as will more fully appear by the complaint, and that a cause of action exists against said defendant, in favor of said plaintiff, for the sum stated in said affidavit, and that the defendant Benjamin F. Van Camp has departed from the state of Hew York, where he has been a resident, and with the intent to cheat and defraud his creditors, and to avoid the service of a summons upon his himself." The complaint may import the purpose to recover against the defendant therein as for a conversion of personal property, and, as such the action came within those in which the statute permitted the issue of an attachment. But, in view of all the allegations of the complaint, such was not necessarily the nature of1 the action; nor was it of the recovery, as appears by the facts proven before the referee, and by his report, upon which the judgment was entered. If, as insisted on the part of those appellants, the action was for an accounting, as such, tire plaintiff in it was not entitled to an attachment, and none could issue, because it would not then come within the provisions of the statute permitting the issue of sucli process. Code Civ. Proc. § 635; Thorington v. Merrick, 101 N. Y. 5 ; Ackroyd v. Ackroyd, 20 How. Pr. 93 . And it has been held in Morse v. Smith, 42 St. Rep. 168 ; 17 N. Y. Supp. 385 , that unless special circumstances exist, to permit an action therefor, it will not be entertained, to require an executor or administrator to render an account, as for such purpose the jurisdiction of the surrogate’s court is deemed

The defendants Keeler & Salisbury, having commenced against Van Camp their action to recover for professional services preformed for him, in his matters as executor, etc., of Kelsey, deceased, procured a warrant of attachment to be issued therein to the sheriff June 13, 1888. It was levied upon the real and personal property of Van Camp. Afterwards, and before judgment, the attachment was levied upon certain accounts of Van Camp, against persons, for sums due from them to him, and thereafter the sum of $130.04 was collected by the sheriff on such accounts. Prior to the stipulation and judgment in the Kelsey action, and on December 3, 1888, Keeler & Salisbury recovered judgment in their action for $622.62 damages and $119.98 costs. Afterwards, an ac

In respect to the proceeds of the accounts collected by the sheriff, and of the sale of the real property, the question arises as to the order in which the attaching creditors are entitled to payment,—whether in the order of the receipt of the attachments by the sheriff, or of the levy of them upon such property. The statute provides that, where two or more warrants of attachment against the same defendant are delivered to the sheriff to be executed, their respective preferences are the same as where two or more executions against the property of the same defendant are delivered to the sheriff. Code Civ. .Pro., § 697. And, as to executions, it is provided that the one first delivered to the sheriff to be executed has preference, notwithstanding the levy is first made by virtue of an execution subsequently delivered to him. Id. 1406. Such is the rule applicable to personal property subject to levy of executions. Camp v. Chamberlain, 5 Denio, 198 ; Peck v. Tiffany, 2 N. Y. 451 ; Pach v. Gilbert, 124 N. Y. 612 ; 37 St. Rep. 218 . But, as the sheriff cannot take real property into his custody, it is necessary to constitute the levy of an attachment upon it, that he file with the clerk of the county in which it is situated a notice of the attachment, stating the names of the parties to the action, the amount of the plaintiff’s claim, as stated in the process, and a description of the property levied upon.—the notice to be also subscribed bv the plaintiff’s attorney. Code Civ. Proc., § 649. The levy of an attachment is essential to make it

A question is raised about the disposition of the proceeds received by the sheriff of the Van Camp accounts. As no attachment, other than that of Keeler & Salisbury, was levied upon them, it is not seen that any creditor, other than they, obtained any lien upon the accounts by them attached. Those upon which their attachment was levied produced only $130.04; which amount was sufficient to pay their judgment of $119.98, and they were entitled to its payment from the proceeds of the accounts upon which their attachment was levied. The assignment By Van Gamp to Keeler & Salisbury of the proceeds of other of his accounts collected by the sheriff was not effectual to transfer to them title of such proceeds, to the prejudice of the attaching creditors. When payment of the accounts was made by the debtors to the sheriff, the amount so received by him became charged witli the lien of the attachments in his hands, in the order of the delivery of them to him. In view of the circumstances, the conclusion of the trial court that the sheriff is not chargeable with any greater rate or amount of interest on the fund than that realized by him from it was fairly justified, and such conclusion is sustained. The defendant Orleans County National Bank, having recovered a judgment against Van Gamp, September 14, 1889, by default, upon the service of the summons by publication, after-wards, on November 16th, commenced against him an action upon the same claim, by the personal service upon him, in this state, of the summons and complaint, and on December 7, ¿889, recovered a judgment therein by default. It does not appear that any of the parties, other than the judgment debtor, could be prejudiced by the last mentioned judgment. And whether or not it was, by reason of the former judgment for the same cause, rendered invalid, is a question which none of the parties, other than he, could legitimately raise for consideration. He does not seek to attack it in this action. If the first judgment was effectual to charge the defendant in personam, the other is useless. But if, from any cause, it is not so, it may properly stand. Therefore, without considering the question upon the merits, the conclusion of the trial court that the judgment was void, as well as the judgment tq that effect, is not sustained.

Those views lead to the conclusion that the payment by the defendant Searle, as sheriff, to the defendant Bruner, of $96.65, was made without due authority, and he was not justified in making it; that the defendants Keeler & Salisbury were entitled to priority in payment upon their judgment, of or from the proceeds, amounting to $130.04, of the accounts upon which their attachment was

The judgment should be thus modified without costs to any party.

All concur.