Allen v. Starring

By the court, Campbell, Justice. I think the order of the Chemung county judge should have been vacated. There was an order in full force, made by a justice of this court, for the examination of the judgment debtor. Both the debtor and the creditor had attended pursuant to the order of Justice Parker, on the very day the order was made by the county judge. There was no abandonment or discontinuance of the proceedings. The referee was absent, it is true; but a new time for the examination could have been agreed on, or the justice, on application to him, would have appointed a further or, other time, or the referee, I think, could, on application to him, have fixed a time for the examination. The order for the examination of a judgment debtor is not a mere process to enforce the execution of the judgment, and is not founded on the judgment alone, but upon new facts in part. As a substitute for a creditor’s bill, it is, in its nature, a new suit. (Griffen agt. Domniguez, 2 Duer, 656.) It is instituted before the judge pursuant to authority given by statute, and the jurisdiction of the judge must continue until the examination is completed. ( Webber agt. Hobbie, 13 How. [60] 382.) When the proceedings are complete, the judge may allow to the creditor, or to the party examined, witnesses’ fees and disbursements, and a fixed sum in addition. The creditor should not be allowed to go round to different judges and obtain new orders, without, at all events, a formal discontinuance of the preceding ones, and giving to the debtor an opportunity to apply at least for costs. If such practice should be tolerated, it will be seen that great hardship might result. In my opinion, Justice Parker had full and complete jurisdiction of the matter; that his order was in full force when the order of the county judge was granted; and the latter order should be vacated with costs of the motion. Order of county judge reversed, with $10 costs.