Pinckney v. . Hegeman

*34 Folger, J. It is conceded by the appellant that the order is not void because the motion for it was made without notice; and it is further conceded by her that it is not void because it was granted in a county not within nor adjoining the judicial district in which the action was triable. It is contended that the order is void, for that the Supreme Court has no general nor special jurisdiction to discharge from custody a defendant, who is held by an execution against his person, issued upon a final judgment against him. This proposition, however, does not cover the whole case. The Supreme- Court set aside the execution upon which, in this case, the defendant had been arrested and was held ; and the discharge from custody was consequent upon that. The court had jurisdiction of the action, and complete power and control over the proceedings and process in it; and hence, it might set aside this execution as one of the proceedings, and as a process in the action. It did not simply or primarily discharge the defendant in the execution from his liability upon the judgment against him, or from imprisonment on the execution, leaving the writ a valid and subsisting process. In this, the case differs from the English cases", and kindred authorities cited by the appellant. It set aside the execution as irregularly issued, and then the defendant, Wagner, could not lawfully be kept in custody longer upon that process. But it is claimed that, as the defendant had been arrested and was in custody, the execution had done its office, and the setting it aside, merely, did not affect the right and the duty of the sheriff to still hold the body of the defendant. We are not of that mind. The sheriff could not hold the body of the defendant, unless he could justify in an action brought against him by the defendant for false imprisonment. He could not justify unless he ¿ould show a valid subsisting process by which he had been commanded to take the body of the defendant, and was still empowered to hold it. And the test of whether he could permit the defendant to go at *35 large or not, after the arrest, is whether he had the process of the court or not, commanding him to hold the defendant. If he had process, he was bound to keep the prisoner. If he had not, he had no authority to keep him. But here the prisoner produced to the sheriff the order of the court setting aside its own process. The execution, so far as being a justification for further action of the sheriff, was at once as if it were not, and had never been. It gave no farther protection to th^ sheriff. If he had been sued for.false imprisonment, for after that detaining Wagner in custody, he would have had no writ to show for his justification. The order produced to the sheriff was made by a court having jurisdiction to grant it, and was valid upon its face, free from anything showing want of power, or disclosing a vitiating irregularity. It did not fall within the rule recognized in Bullymore v. Cooper (46 N. Y., 236 ). It is true that the arrest of the defendant upon a ca. sa., and the committing him to jail, is per se a complete execution of the writ. But it is not an annulling of it. The writ is still alive, to show and be the authority justifying the arrest and the continued holding of the body. The order of the court setting aside does not take away the authority by which the arrest was made, but does take away the authority for further detention, because it takes away the writ which would justify detention. So in making title to real estate, sold by a sheriff under the directions and authority of an execution against the real property; though by the proceeds of the sale it may have been satisfied, and may have been returned satisfied, and entry made upon the docket and upon the judgment roll, so that the judgment is satisfied of record; yet both judgment and execution remain as muniments of the purchaser’s title. Eor is the other position of the appellant tenable. It is to be presumed, it is said, that the sheriff had made a return of the execution, because it was his duty so to do. And Sturgis v. Read, Adm’r (2 Greenl, 109), is cited to show that an execution executed and returned cannot be set aside. *36 It needs not to consider whether this is so or not; for there is not room here for the presumption. The sheriff was bound to return the execution within sixty days after its receipt by him. It was not his duty to make return sooner than that. The allegations of the complaint and answer show that he received it on the 7th of April, 1869. He had until the seventh of June to make return. .The proofs and the findings show that, on the twenty-ninth of April, the order was made setting aside the execution. The sixty days had not expired. And though we may presume that lie .did his duty at all times; we may not to his disadvantage, presume that he did it sooner than he was obliged to in this instance. The judgment appealed from should be affirmed, with costs to the respondent, All concur. Judgment affirmed.