People ex rel. Lewis v. Daly

Headnote

Discharge of vmpn'isoned, debtor—publication of notice necessm'y to give court jmisdic- • tion—Certiorari.

Isaac Goldstein, an insolvent and imprisoned debtor, applied to the respondent for a discharge of his person from imprisonment. On the day the order to show cause was returnable, there being no opposition, the order was granted. The proceedings were removed into this court, in pursuance of section 47 (2 R. S. [Edm. ed.] 50). The relators sought a reversal, on the grounds that the notice directed by section 4 (2 R. S. [Edm. ed.], 29), was, by the order of the judge, to be published in the Daily Register and Albany Evening Journal, and was directed to be given for the 6th of June, 1874, at 11 a. m. ; that^ in fact, the publication of the notice in the Register was of an application to be made on the 3d of June, 1874, at 11 a. m., and so the proof before the officer disclosed the fact to be. The General Term held, that until the publication of the notice was made as directed, and proof of such publication was before the officer, he was without jurisdiction. ( 16 Barb., 319 .)

It was claimed on the part of the respondent, that the relator having the right of appeal in the Common Pleas, the remedy by certiorari should be denied him; but the General Term held, that the statute (2 R S. [Edm. ed.], 50, § 47) was positive as to

the relator’s right, and the court had no right to withhold what the statute gave to a party.