Read v. . French

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 287 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 288 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 289 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 290 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 291 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 292 The question at issue was, whether the plaintiff or the defendants, Abner French and Horace French, were entitled to the proceeds arising from the sale of certain property by the defendant Nott, under and by virtue of two executions delivered to him as sheriff. The sheriff assumed to decide the question of priority of the executions, in favor of the defendants French, and retain in his hands sufficient of the moneys to pay and satisfy their execution. He has really no interest in the determination of the case, except as a mere stake holder. It is a statutory provision, that if there be several executions issued out of a court of record, against the same defendants, that which shall have been first delivered to an officer to be executed shall have preference, (2 R.S. 366, § 14;) and in making a disposition of the proceeds of the sale of the property levied on, the sheriff must ordinarily be governed by the priority in the delivery of the executions to him. The execution creditor may, however, waive the preference, or the prior execution may be withdrawn or postponed, or become dormant as to a subsequent one; in which case the latter would be entitled to be first satisfied from such proceeds. The execution on the judgment in favor of the defendants French was, as respects its delivery to the officer, prior in point of time to the execution on the plaintiff's judgment; but these attorneys, who had fraudulently issued it, stipulated that it should be postponed to that of the plaintiff; or, in the language of the writing, the plaintiff's execution should "have the priority and the same effect in law as if first delivered to the sheriff." If the attorneys had the authority to thus stipulate, it would end the case. The judgment of the special term, in effect, simply declares this priority, and adjudges *Page 293 the money in the sheriff's hands realized by the sale, and not paid over to him, to belong to the plaintiff. I have no doubt that the stipulation was within the scope of the authority of the attorneys of French. They had fraudulently obtained the French judgment, and issued execution thereon, securing for it a priority of lien. The judgment and execution would, on motion, have been set aside altogether; but to avoid this, they stipulated that the plaintiff's judgment and execution should have the preference. These powers extended to opening the default which they had taken, (whether properly or improperly,) and vacating the judgment entirely, even though their clients had instructed them to the contrary. A client has no right to interfere with the attorney in the due and orderly conduct of the suit; and certainly can not claim to retain a judgment obtained, and an execution issued by his attorney fraudulently. (Anon. 1Wendell, 108; Gaillard v. Smart, 6 Cowen, 383.) So, also, the attorneys of French had control over the execution in every respect. They might have withdrawn it from the hands of the sheriff, or suffered it to become dormant as to a subsequent one, or have authorized the officer to depart from the regular and ordinary course of his duty. (Corning v. Southland, 3 Hill, 552; Waters v. Sykes, 22 Wend. 564.) An attorney has authority over an execution for at least a year and a day after judgment perfected in favor of his client, (Lusk v. Harting, 1 Hill, 659, and cases cited,) and may now even acknowledge satisfaction at any time within two years. (2 R.S., 2d ed., 286, § 26.) The stipulation, therefore, of the attorneys of French postponing the French judgment and execution to that of the plaintiffs, was within their authority, and given upon adequate consideration, viz. that a motion should not be made to set aside their judgment altogether. Instead of being an act wholly irreconcilable with their duty as attorneys of the Frenches, (which it is claimed to have been,) it was the reverse; for the retaining *Page 294 of an advantage obtained by artifice or fraud is not a duty which an attorney owes to his client. One of the grounds on which the defendant Nott moved for a nonsuit was, that the plaintiff's judgment was void because the affidavit and confession did not state the necessary facts to show an indebtedness from Clark Hadwin to the plaintiff. To this two or three answers may be made. 1st. The sheriff could not collaterally raise the question of the validity of the judgment; 2d. A judgment by confession is not absolutely void where there has been a defective statement, but is voidable only at the instance of a party interested; and 3d. The statement was sufficient. The objection urged is, that it does not show by whom or to whom the goods were sold. This is really frivolous. It is stated that Clark Hadwin are indebted to Read in the sum of $3300, which indebtedness arose on account of goods purchased in the year 1853; that the whole amount of the purchase was $3500, and the amount remaining due at this date is $3000; that the goods consisted of cloth, trimmings, c., and were purchased at Providence, Rhode Island, where said Read resides. It is true, it is not stated in terms that the goods were purchased by Clark Hadwin from Read, but the words used plainly import the fact, and are susceptible of no other construction. (Neusbaum v. Keim,24 N.Y. 325; Lanning v. Carpenter, 20 id. 447; Freligh v.Brink, 22 id. 418.) The special term awarded costs against the sheriff, but the judgment in this respect was properly modified by the general term. The judgment of the Supreme Court should be affirmed.