Kissock v. Grant

Balcom, P. J. I am of the opinion the judgment of the justice was not void. The affidavit, on which he issued the attachment, contained some legal evidence which tended to show the plaintiff had departed from the county of Delaware, where he last resided, with intent to defraud his creditors. (See Skinnion v. Kelley, 18 N. Y. Rep. 355.) It was sufficient to give the justice jurisdiction, and to uphold his judgment when attacked collaterally; and having jurisdiction, his error in subsequently issuing a summons and holding the cause open until its return, did not make his judgment entirely [149] nugatory. (7 Barb. 621. 7 Wend. 200.) It was regular, but erroneous; and was properly reversed for error. It was valid until reversed, and the execution issued thereon and the sale of the property in question, in virtue thereof, were regular and lawful—and did not become irregular or unlawful by the reversal. In Turner v. Felgate, (1 Levinz’s Rep. 95,) a man had a judgment and execution executed, and afterwards the judgment was vacated for being unduly obtained, and restitution awarded; then the defendant brought trespass against the plaintiff in the first action for the taking of the goods;. and it was adjudged that it well lay against the party • for by the vacating of the judgment it is as if it never had been; and is not like a judgment reversed by error. But Justice Twysden said that he was not satisfied with this' judgment when it was given, in the time of Grlyn, chief justice, nor was he yet for making a man a trespasser by relation, for when the execution was served there was a judgment, though that afterwards the execution was vacated. It was solely upon this authority that Comyn stated, in his Digest, “ So if a man has color of an authority, and after-wards it is vacated $nd declared to he null, he will he a trespasser ab initio; as if a man obtains judgment irregularly, and afterwards takes out execution, the party (though not the officer) will be a trespasser, if the judgment he vacated.” (7 Com. Dig. 499, 5th ed.) The report of the case of Felgate v. Tourner, (1 Keble, 822,) shows that the first judgment against Turner or Tourner was set aside by rule, as irregular. (See 1 Keb. 453, 488.) There can be no doubt hut that a judgment or execution or other process that has been set aside for irregularity ceases to be any justification for acts done in virtue thereof by the party obtaining the judgment or suing out the execution or other process; and he will be liable for such acts as a trespasser ab initio. . (Chapman v. Dyett, 11 Wend. 31. Smith [150] v. Snyder, 15 id. 324. Barker v. Braham & Norwood, 3 Wilson, 368.) But a party is never a trespasser or wrongdoer for selling property by virtue of an execution, in due form, issued upon a judgment regularly obtained, though the same be afterwards reversed for error, (1 Cowen, 622, 711 to 734, 735;) and he is not liable as a trespasser ab initio for causing process to be executed, which is regularly obtained, though erroneously granted, and subsequently set aside for error. (3 Sand. 323. 19 Barb. 283.) “ There is a marked distinction between judgments reversed for error and executions set aside for irregularity. In the latter case, the party is never excused, if the irregularity be such as renders the process void. One case is the fault of the party himself, the other is considered the error of the court.” When a judgment is reversed for error, “ the execution is valid to the time of reversal. It confers a right on the sheriff to sell, and sanctions all legal acts done under it.” (1 Cowen, 734, 5.) If the foregoing views are correct, the sale of the property in question was not wrongful but valid, because it was made by virtue of an execution in due form, regularly issued on a judgment, then in force, and which was valid until reversed for errors committed by the justice who rendered it. The defendant therefore is not chargeable for wrongfully taking or wrongfully converting such property; and the plaintiff was properly nonsuited. The plaintiff could have had an order, upon the reversal of the judgment, that the money collected thereon be restored to him with interest from the time it was collected. (Code, § 369.) Perhaps he may yet obtain such an order; or it is possible he may recover such money of the defendant by action, or sue upon the attachment bond. But we need not point out his remedy if he has any—our present duty will be discharged when we have determined the case in hand. It follows that the plaintiff’s motion for a new trial in the action should be denied, with costs. [151] [Broome General Term, July 9, 1861. Campbell, J. concurred in denying the motion for a new trial. Parker, J. dissented, and delivered an opinion, in which he held that the judgment of the justice was void by reason of the insufficiency of the affidavit on which the attachment was issued. . Motion for a new trial denied, with costs. Balcom, Campbell and Parker, Justices.]