Frederick v. Decker

Ingraham, Justice. One of the defendants was ordered to appear and be examined under proceedings supplementary to . execution. The affidavit is in the usual form in the name of the plaintiff made by C. D. Evans, Esq., as acting for plaintiff. A motion is now made on affidavit of the plaintiff that he was paid the judgment by McKinstry, and had assigned the judgment to him and had never authorized these proceedings. The defendant also swears to the transfer of property to McKinstry, to pay the note on which the judgment was recovered. These allegations are denied by McKinstry, and he insists that the debt is due to him as assignee. I am inclined to the opinion that where an assignee seeks to examine a judgment-debtor, he should show in his affidavit that he has a right to proceed upon the judgment as is stated in Lindsay agt. Sherman (1 Code Rep. N. S. 25, 232.) But the case of Orr, in 2 Abbott, 457, seems to hold the contrary. The affidavits as to payment of the judgment are contradictory. It is not advisable to decide that question on these papers, but it should be disposed of more properly by a motion to satisfy the judgment. If the defendant’s affidavit correctly states the facts, the motion should be granted. To enable the defendant to make this motion, I direct all further proceedings on this order to be stayed until the 10th of Kovember next, to which time the same is to be adjourned, if necessary.