Kelly v. Brownlow — 54 N.Y. Super. Ct. 129

Majority

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PATRICK KELLY, Appellant, v. FOSTER B. BROWNLOW, Respondent.

Headnote

Constitutional law—Executions, act limiting time to issue, when constitutional—Code Civ. Proc. § 572, as amended, applicable to executions against the person, though no order of arrest, with a single exception, and to eases where execution against the property was returned before the passage of the amendment—As to excuse for not issuing.

A statute limiting the time within which an execution against the person may be issued on a judgment does not impair a vested right, but only affects the remedy. There is no constitutional objection therefore, to its being made to apply to executions on judgments recovered before the passage of the act, provided the time limited is computed from the passage of the act, in the cases where the prescribed limit had begun to run before the time of its passage.

Section 572 of the Code of Civil Procedure, as amended by chapter 672 of the Laws of 1886, applies to all cases of execution against the person, irrespective of the question whether or not an order of arrest was in fact obtained, with the single exception of a case where the order of arrest can be granted only by the court.

Chapter 672 of the Laws of 1886, amending § 572 of the Code of Civil Procedure, prescribing in effect that an execution against the person of the defendant must be issued within ten days after the return of execution against the property, must be construed in the cases of judgments recovered and executions against property issued thereon, returned before the passage of the act, as meaning within ten days after the passage of the act; and as thus construed it imposes a valid limitation of the time within which an execution against the person can issue on a judgment upon which execution against the property was returned before its passage, to ten days after such passage.

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Neither absence of attorney from the city, nor the institution of supplementary proceedings constitutes an excuse for postponing the issue of execution against the person beyond the time limited.

Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

Decided December 30, 1886.

Appeal by plaintiff from an order made at special term discharging the defendant from imprisonment under an execution against his person.

I. Newton Williams attorney and of counsel for appellant, argued:

I. There is no provision in chapter 13 Code of Civ. Proc., (which governs and regulates executions against the property and person,) limiting the time within which an execution against the person shall be issued after the entry of final judgment, or after the return of execution against the property. (See Title 3, §§ 1478 and 1288, Code Civ. Proc.)

II. Section 572, Code Civ. Proc., as amended by chapter 672, Laws 1886, does not apply to this case, as no order of arrest has been granted in the action. Section 572 is one of the sections of chapter 7, Title I, Article II, of the Code, Chapter 7, is entitled: “ General Provisional Remedies in an action.” Title I, relates to arrest pending the action, and proceedings thereupon. This title has four articles, to wit: Article I. is: Cases where an order of arrest may be granted, and persons liable to arrest. Article II. is: Granting, executing and vacating or modifying the order of arrest. Article HI. is as to bail. Article IV. is as to charging and discharging bail. It will be seen that § 572 of the Code, being a part of Article H. of Title I. chapter 7, applies only where an order of arrest, a provisional remedy, has been invoked. In this case no order of arrest has been granted. Amendments to a statute are incorporated into the original statute, and must be read as if enacted with the original statute, and

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can effect no subject, except that covered by the original statute. Thus construed this section as amended only applies to cases where the provisional remedy of an order of arrest is invoked.

IH. Prior to the amendment of 1886, to § 572 Code Civ. Proc., the plaintiff was under no duty to enter judgment, or to issue execution against the person, unless the defendant was in actual custody, under an order of arrest issued in the action. In this case, conceding the amendment of 1886 is applicable, the plaintiff had any time before the expiration of three months, from June 15, the date the act took effect, to issue the execution against the person of defendant (Schmit v. Heitner, 45 Super. Ct. 334; § 572, amended by Laws 1886 ; De Silver v. Holden, ante p. 1.) The execution was issued September 7, less than three months from the passage of the amendment.

IY. The provisions of section 572 as amended aré not mandatory. It is discretionary with the court where no order of arrest has been issued in the action. Here the examination of defendant in supplementary proceedings was not concluded until August 12, 1886. Plaintiff has shown diligence, and has acted in good faith (De Silver v. Holden, supra).

Y. This judgment was obtained prior to the amendment of 1886 to section 572 of the Code, and is not affected by that amendment. Statutes are not retrospective unless expressly made so by the legislature. This amendment applies only to cases commenced after June 15, 1886, except when judgment debtors were at the time of the passage of the act, under imprisonment, and not to this case (Dash v. Van Kleeck, 7 John. 477 ; Sayre v. Wisner, 8 Wend. 661 ).

Goodrich, Deady & Goodrich, attorneys and of counsel for respondent, submitted no printed points.

The motion for

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defendant’s discharge from imprisonment under the execution issued against his person, was based upon the provisions of § 572 of the Code of Civil Procedure, as amended by chapter 672 of the Laws of 1886. The amendment took effect June 15, 1886. The grounds of the motion were : (1.) that at the time of the issuing of the execution against defendant’s person more than ten days had elapsed since the return of the execution against defendant’s property; and (2.) that at the time of the issuing of the execution against defendant’s person more than three months had elapsed since the entry of judgment.

Prior to the amendment of 1886, the first ground did not exist in favor of any defendant, and the second ground was available only to a defendant in actual custody, by virtue of an order of arrest in the action, or upon a surrender in exoneration of his bail.

The amendment of 1886 abolished the requirement of actual custody in all cases, and otherwise enlarged the grounds upon which a discharge may be applied for and granted. One of the new grounds provided for is the neglect of the plaintiff to issue execution against defendant’s person within ten days after the return of the execution against defendant’s property.

In the case at bar, plaintiff-recovered a judgment against the defendant for personal injuries for $2804.92, on February 1, 1886. Execution against the property of the defendant was returned by the sheriff unsatisfied on May 25, 1886. Execution against the person of the defendant was issued on September 7, 1886.

Inasmuch as it thus appears that both the recovery of the judgment and the return of the execution against the property, took place before the passage of the amendment, and at a time when the plaintiff was under no duty to issue execution against the person within ten days after the return of the execution against the property, and within three months after the entry of the judgment hi cause the defendant was not in custody,

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the plaintiff’s time within which to issue execution against the person, should, under the decision of De Silver v. Holden (ante p. 1), be computed- from the day the amendment took effect, viz: June 15, 1886. When thus computed it will be found that, although the plaintiff did issue the execution against defendant’s person within three months after the amendment had taken effect, it was not done within ten days. This is quite a serious objection, for the language of § 572 as amended is, “ ... if the plaintiff . . . neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment ...”

It therefore remains to be seen whether the plaintiff showed reasonable cause for a denial of defendant’s motion. Section 572 is not peremptory. It authorizes in express terms a denial of the application whenever reasonable cause is shown why the application should not be granted.

What the plaintiff did show was that on June 7, 1886, he obtained an order for the examination of the defendant in supplementary proceedings; that the "examination of the defendant was not concluded until August 12; and that between the last-named day and the day of the date of the execution against the person, viz: September 7, plaintiff’s attorney was out of the city on his vacation.

The absence of the attorney from the city cannot be accepted as an excuse. Nor does § 572 recognize the institution of supplementary proceedings as an excuse for postponing the issuing of the execution against the person. Moreover the defendant showed that the supplementary proceedings were unnecessarily prolonged by plaintiff’s attorney, so that he, the defendant, although he never asked for an adjournment, was compelled to attend court on six different occasions. He

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also showed by affidavit that he verily believed that his attendance was thus compelled, in order to annoy him and to induce him to compel his wife to sign a deed for some real estate which he owned in Bermuda and which deed he had offered to the plaintiff on the first day of his examination, but which his wife had refused to sign.

Under these circumstances, if § 572 applies to plaintiff’s case at all, the learned judge who made the order appealed from, may be deemed to have held, and to have very properly held, that reasonable cause was not shown for a denial of defendant’s application.

The last question to be considered therefore is whether § 572 as amended applies to plaintiff’s case at all.

The plaintiff contends that it does not, (1.) because the judgment was recovered and the execution against the property returned prior to its amendment, and the defendant was not then in actual custody, and (2.) because no order of arrest was ever granted in the action.

As to the first point it may be conceded that a statute is not to be construed to operate retrospectively, so as to take away a vested right. The cases of Dash v. Van Kleeck ( 7 John. 477 ), and Sayre v. Wisner ( 8 Wend. 661 ), which were cited by the plaintiff, enforce this doctrine, but go no further. At the same time it must also be conceded, as it was conceded in the case last referred to, that it is strictly within the reason of the said rule of construction to hold that a statute of limitation, containing upon its face no exceptions, may be made to apply to cases already existing, provided the limitation is computed from the time the statute takes effect. This qualification is especially applicable to statutes which do not directly affect a vested right, but only the remedy upon it. A limitation of time within which an execution against the person may or must be issued, is a statutory provision of this character. It affects only the remedy.

A construction of the statute, therefore, under which

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the running of the statute is computed from the time the statute went into effect, does not impair any vested right. Under this rule of construction the plaintiff was bound to issue his execution against defendant’s person within ten days after the 15th of June, 1886.

As to the second point the plaintiff contends that, because § 572 is a section contained in Title I. of chapter VII. of the Code of Civil Procedure, which title relates to arrest pending the action and the proceedings thereon, it should be construed to apply only to cases in which an order of arrest has been obtained. This may be freely admitted to be a close question. But as the language of the section as amended does not show the limitation contended for, and the limitation cannot be imposed upon the section without the interpolation of words which the legislature did not see fit to insert, and in as much as the words “ in any event,” if effect is to be given to them, apply to all cases indiscriminately, and the inference is not an improbable one that the legislature meant to provide for all cases of executions against the person irrespective of the question whether or not an order of arrest was in fact obtained, with the single exception of a case where an order of arrest can be granted only by the court, the point contended for should be decided against the plaintiff.

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

Sedg viok, Ch. J., and Ingraham, J., concurred.

Cases cited

Sayre v. Wisner 8 Wend. 661 N.Y. Sup. Ct. p. 131, p. 134