McMichael v. Kilmer

Headnote

A motion made for the purpose, simply, of obtaining the opinion of the court — will not be entertained.

Appeal from an order made at Special Term, denying a motion made by the defendant.

An affidavit, made by one of the attorneys for the defendant, showed “ that judgment dismissing the complaint, with costs, has been duly entered up in favor of the defendant, in the Saratoga comity clerk’s office, where the judgment-roll is filed; and the same was duly docketed in said “office on the 22d day of April, 1879, for $697.11; that afterwards an execution on said judgment against property was duly issued to the sheriff of Saratoga county, where the said McMichael then resided and still resides, and the same was afterwards returned wholly unsatisfied; that thereupon the defendant’s attorneys issued an execution against the person of the said McMichael on said judgment, for said costs, to the sheriff of Saratoga county, and that the time for its return expires on the twenty-third instant. Deponent further says, that as he is informed and believes, plaintiff’s attorney, J. R. Putnam, Esq., claims that an execution against the person of said McMichael cannot properly issue in said action, inasmuch as no order to arrest was ever made and served in said action ; and the defendant Kilmer therefore desires to have the question passed upon by the court before taking the responsibility of arresting the said McMichael and committing him to the county jail on said execution, and being liable for false imprisonment in case it shall be determined that an execution against the person is not properly issuable in said action, to collect said costs.”

Upon this affidavit an order was made requiring the plaintiff to show cause why an order should not be made in said action declaring that said execution so issued against the person of said McMichael was properly issued, and directing the sheriff to execute the same, and why such further or other order should not be made as may be just.

The Special Term denied the motion on the merits.

The court, at General Term, said : “In affirming this order we express no opinion on the question whether or not an execution against the person was properly issued. It is enough to say that in such asi action as this a motion cannot be heard which does not ask the court to do anything, but only to express an opinion as counsel.”