p. 565JOHN BAXTER, Respondent, v. WILLIAM F. DRAKE, Appellant.Headnote
Code of Civil Procedure, § 552 — when a defendant may be arrested in an action brought here on a judgment obtained in a foreign State.Under section 552 of the Code of Civil Procedure, a defendant may be arrested in an action brought in this State upon a judgment recovered in a Circuit Court of the United States, provided he might have been so arrested had the original action been brought here.
Appeal from an order denying a motion to vacate an order of arrest.
In the years 1871 and 1872, the Exchange and Deposit Bank of Knoxville placed in defendant’s hands certain bonds of the Wilcox Mining Company, he agreeing to sell them upon commission and account to the bank for the proceeds, or upon demand to return the bonds. He refused, however, to account for eighteen of the bonds, or to return the same. The bank thereupon brought suit against the defendant in the United States Circuit Court for the Eastern District of Tennessee, to recover the value of said bonds, alleging that the defendant promised and agreed that he would redeliver the bonds to plaintiff whenever thereunto requested, and that, although demand had been duly made, the defendant refused to redeliver the same. The bank recovered a final judgment in that suit for $13,318.50. The complaint in the present action sets forth the recovery of the judgment, and its assignment to this plaintiff. The answer consists merely of a denial of any knowledge or information sufficient to form a belief as to the assignment, and of a denial of any indebtedness.
Sullmcm <& Cromwell, for the appellant.
Beach <& Bemcm, for the respondent.
This case only involves the construction of section 552 of the Code of Civil Procedure.
p. 566We are of opinion that the construction given by tbe court below is correct. And on tbe grounds stated in tbe opinion of Mr. Justice Lawrence, we tbinlc tbe order must be affirmed.
Tbe following is tbe opinion of
Tbe order of arrest seems to bave been authorized by tbe provisions of section 552 of the Code of Civil Procedure. Tbe note to that section states that it is new, and is intended to settle a question upon which tbe decisions conflict. The authorities relied upon by tbe counsel for tbe respective parties in this case are cited in tbe note, and I do not see bow it can be argued that the section was not intended to change tbe law as declared by tbe Supreme Court, in tbe case of Goodrich v. Dunbar ( 17 Barb., 644 ). If that is not the effect of tbe section, it has no meaning whatever. Motion denied, with costs.
Present — Davis, P. J., Brady and Barrett, JJ.
Order affirmed.