Warren v. Wendell

Gould, J. —It would seem that, when an order is with a stay until a motion is decided, and the decision of that, motion contains a continuance of the stay, there is no point of time, at which there is not an operating stay. Nor is it easy to see how a party, who is stayed until the making and decision of a motion, can take notice of the fact that there has been a decision of that motion, without taking notice of the terms of that decision. In this case the plaintiff proceeded on the decision, without taking notice that, by that decision, the stay was continued. It is quite • true, -that the manner of the mistake is fully explained, so that there was no breach of good faith, or of fair [190] practice, in entering up the judgment. But, 'nevertheless, the judgment was entered while' there was an actual stay, and a stay binding on the plaintiffs. It would, therefore, "Seem that the judgment entered by the plaintiffs’ attorneys, was.irregu-larly entered, and that it cannot stand in the way of 'making this motion. The point that defendants are' too late for making this motion, because they have given bail and justified (15 Barb., 26 ; 25 Ib., 333), can hardly be sound, in view of the amendment of section 204 of the Code, made in 1858, since that expressly says that, at any time before judgment, a party may apply to vacate" the order, or reduce the amount of bail; clearly providing for a case where bail had been put in. The meaning of the present provisions is, that to avoid being actually confined, a party may give bail and perfect it (either opposed or not), and thereafter have time to make out papers, and move for a vacation" of the order, until judgment entered. In other points this case is peculiar, since the complaint— drawn as if to call for an execution against the person, without any preliminary arrest—sets forth a fraud in the contracting of the debt. And the defendants, in their answer, take issue directly on the question of fraud'. '■ On' these pleadings théy go to trial, and the judge (on a- trial without a jury) "expressly • finds' that there was not fraud in contracting the debt. Against such finding the plaintiffs protest, but the judge insists, and it is so expressly found, and is in the judgment. Independently of the allegations in the complaint, the plaintiffs, on affidavits, procured an order of arrest, and had the defendants arrested. And the motions now are, to vacate the judgment entered by the' plaintiffs, and also to vacate the order of arrest, and proceedings under it, on the proof made at the trial by Wendell, one of the defendants, and on the said finding of the judge. The plaintiffs claim that the issue, as to the fraud, was improperly in the pleadings, citing 13 How. Pr., 230 ; 20 Ib., 236, both based on 2 Seld., 560. But, with1 all deference to both the opinions in Howard, :it would' seem'that both erf in saying that the case in Selden is an authority for the position that such allegations cannotbepfoperly madé in the'complaint. For while this latter case certainly does decide, that the grounds [191] for an execution against the person need not appear in the pleadings, it, as certainly, says (at p. 566) of the plaintiff’s right to issue execution against the person of a defendant,— “ there are two ways, in which it may be made to appear : one, by affidavit and an order to arrest; and the other, by embracing in the pleadings, the facts which authorize the arrest,” This would seem to be an authority directly in point, that such allegations do belong in the pleadings. And if the allegations do, of necessity, a denial of them is proper on the part of. the defendant. It follows, that the issue on them, in this case, was material, and the finding thereon conclusive on the plaintiffs, so long as not appealed. Were I to hear this motion on the affidavits merely, I am by no means sure that I could properly decide to vacate the original order. For though there is a direct contradiction, by Wendell, of the affidavit of the plaintiffs’ clerk, Lawrence, G. W. Grant’s affidavit, that he was ever introduced to Lawrence, by Wendell, as being Wendell’s partner, is not produced. Still, it is to be noted, that Lawrence’s denial of any such intro-' duction is limited to the period “ prior to the purchase of the goods,” without saying any thing as to Grant’s having been so introduced at any time. Further, there is nothing in any of the affidavits, which even alleges that G. W. Grant made any representations whatever, or knew of Wendell’s making any. So that, as to his arrest, there would seem to be no foundation for it. On the whole, it seems difficult to avoid the conclusion, that a deliberate finding on the trial, properly made then, and properly embodied in the record, does over-reach the preliminary order of arrest, and really adjudicate that it should be vacated. . Motions granted.