Wood v. . Henry

Woodbuff, J. The Code of Procedure, in section 179, authorizes an arrest, in certain specified actions, in which the cause of arrest is identical with the causé of action. In such cases, the complaint, if it states facts constituting a cause of action, necessarily states facts, which, if established by á recovery and judgment, conclusively show that the defendant was liable to arrest, under the provisions of that section. It authorizes an arrest, in certain other cases, in which the cause of action may be complete and perfect, but where no cause of anbst is necessarily involved therein. The right of arrest, in those cases, depends upon extrinsic facts, which, though, in a certain sense, collateral to the cause of action, are not at all essential to the recovery of the judgment, which the plaintiff seeks. Sections 180, 181, 182 and 183, provide for an order of arrest, to be obtained in the action, and authorize the granting of the order, at any time before judgment; and by section 204, a defendant arrested must apply, if he desired a discharge, or a reduction of the required bail, by motion, before judgment, and there was no provision giving him the opportunity, after judgment. Section 288, of the Code, provided, that if the action be one in which the defendant might have been arrested, as provided in sections 179 and 181, an execution against the person of the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of a fifa, unsatisfied. *127 Under these provision's, there was some difference of opinion, and doubt, as to the constructiim of the latter section. Must an order of arrest be obtained, in all cases before judgment % Or may an execution issue against the person of the defendant, although no such order was made before judgment % If so, then it would seem that a defendant might be imprisoned on execution, though the cause of action involved no liability to arrest, upon an ex parte statement of extrinsic facts, and he be powerless to move for a discharge, however full his proof might be, that he was not justly charged. Intermediate these two inquiries, was a third: must an order for the arrest be obtained before judgment, in those cases in which such extrinsic facts are relied upon as the cause of arrest, such an order being the only, and the appropriate, mode of showing a liability to arrest, as provided in section 288 ? But where the cause of action, in itself, involved a liability to arrest, may not execution issue against the person, without any previous order, the judgment, in such case, showing, conclusively, the liability of the defendant to be arrested ? ■This latter view of the subject was deemed, by many, the most just construction, and to be fairly warranted by all of the sections of the Code, bearing on the subject. In 1862, the question was put at rest by an amendment of the section (288), which authorizes executions against the person, so that it now reads: “ No execution shall issue against the person of a judgment debtor, unless an order of arrest has been served, as in this act provided, or unless the complaint contains a statement of facts, showing oné or more of the causes of arrest, required by section 179.” ■This answered the questions above stated. In some of the cases mentioned in section 179, the cause of arrest, and the cause of action, being identical, the complaint, if it stated a cause or causes of action, would, and must, contain a statement of facts, showing one or more causes of arrest. In other Cases, the cause of arrest, being extrinsic, would not appear in the complaint, and execution against the person is prohibited, *128 unless an order of arrest had been served before judgment, with all the opportunity to ineet and disprove it, provided in the previous chapter. Here was no alteration of the rules of pleading, or change in the requisites of a complaint in the action. Those requisites had been distinctly declared before, and in terms which forbid the introduction into the complaint, of anything not so prescribed. The 142d section states, what the complaint shall contain: besides the title and the venue, “ a plain and concise statement of the facts constituting the cause of action; ” a demand of the relief to which the plaintiff supposes himself entitled, or if the recovery of money be demanded, the amount thereof. This stands now, as before, the rule in declaring, and conforms perfectly to the construction of the amendment of 1862, above stated. If the statement of facts, thus prescribed, shows one or more of the causes of arrest, then the cause of action, and the cause of arrest are identical, and judgment for that cause establishes, conclusively, a liability to arrest, and execution against the person follows. If the statement of the facts constituting the cause of action does not,_per se, import liability to arrest, then a previous order of arrest, upon proof of extrinsic facts, which are not essential to the recovery of judgment, must be procured, or no execution against the person can issue upon the judgment. In the present case it may have been wholly impossible for the defendants to deny that they owed the money claimed by the plaintiff, or that the consideration of the indebtedness was the receipt of moneys arising from a sale of the plaintiffs’ goods. And yet they may be quite able to show, that they were not commission merchants, and that the circumstances, under which they acted, did not establish any fiduciary relation between them and the plaintiffs, but the relation of debtor and creditor merely. If so, then by no possible answer which the defendants could truthfully interpose, could they *129 have prevented judgment for the plaintiffs, for the amount claimed. Admitting the debt, they could not demand a trial, to determine the extrinsic facts, when the jury must necessarily have found a verdict for the recovery of the money. We have no provision, authorizing an answer setting up such extrinsic facts, going neither in denial nor avoidance of the cause of action itself. We have no provision for the trial of such collateral questions, and no warrant for a judgment, other than that the plaintiffs recover so much money with costs, &c. The order appealed from was correct, and should be affirmed.