Owen v. Dupignac

By the Court.—Daly, F. J. It appeared by the affidavit upon which the order for the examination of the defendant was founded, and the fact was recited in the order’, that an execution had beezr issued upon the judgment, and had been returned [184] wholly unsatisfied. This was sufficient to entitle the plaintiff to an order for the examination of the defendant. It was held in Cuyler a. Moreland (6 Paige, 273), that when an execution upon the judgment had been returned unsatisfied that a creditors’ bill might be filed, though the plaintiff had issued another execution, and that he was not bound to wait, before the filing of his bill, until the new execution was also returned unsatisfied. That even where a levy was made under the second execution, the bill might be maintained unless it was shown that the property levied upon was amply sufficient to pay the judgment. And in Bates a. Lyons (7 Paige, 85), it was held where an execution had been returned unsatisfied, that a creditors’ bill might be filed, though the complainant had brought a new suit upon his judgment, and had recovered a new judgment thereon. The principle and the practice established by these cases is applicable to proceedings under section 192, for it has been repeatedly held that these proceedings are to be regarded as a more summary and less expensive substitute for the creditors’ bill under our former system, and that the rules settled in reference to proceedings under creditors’ bills may with propriety be regarded as controlling, when not altered by the Code, or by the practice under it. (Orr’s case, 2 Abbotts’ Pr. R., 458; Griffith a. Dominguez, 2 Duer, 658; Davis a. Turner, 4 How. Pr. R., 190; Myer’s case, 2 Abbotts’ Pr. R., 476; Sale a. Lawson, 4 Sandf., 718; Lilliendahl a. Fellerman, 11 How. Pr. R., 528.) It is true that the execution in this case was issued and returned unsatisfied ten years before the application was made for this order. But that makes no difference. The Code in this respect is the same as the provision in the Bevised Statutes respecting creditors’ bills. (2 Rev. Stats., 173, § 38, 1st ed.) The right to the discovery by the examination of the debtor is given whenever an execution has been returned unsatisfied in whole or in part. It is unqualified, and we cannot in face of this statutory provision say that by reason of lapse of time, the creditor must issue another execution and wait its return before he can have the order. The return of an execution unsatisfied is the only condition imposed. (McElwain a. Willis, 9 Wend., 560.) When that is done, the right is given by the statute, and court cannot take it away or impair it by imposing other conditions. Even before the Bevised Statutes, all that was essential to give [185] the court jurisdiction was, the return of an execution unsatisfied, to reach property of the debtor held in trust, or fraudulently covered. (Brinkerhoff a. Brown, 1 Johns. Ch„, 671; Beck a. Burdett, 1 Paige, 305; Edmonston a. Lyde, Ib., 636; Child a. Brace, 4 Ib., 309; Clarkson a. Depeyster, 3 Ib., 320; Cassedy a. Meacham, Ib., 311; Donovan a. Finn, 1 Hopk., 59; Angel a. Draper, 1 Vern., 399; Shirley a. Watts, 3 Atk., 200; Balch a. Wostall, 1 P. Wms., 445.) “The legal remedy by execution,” says Chancellor Kent in the first of these cases, Brinkerhoff a. Brown, “ must first be tried, as this court is not to know by anticipation that it will be ineffectual,” and in McDermot a. Strong (4 Johns. Gh., 687), a supplemental bill to reach property in the hands of assignees was filed in 1819, upon an execution returned unsatisfied ten years before, in 1809. It was upon this ground that I denied the motion to set aside the order, the affidavit disclosing facts sufficient to entitle the plaintiff to examine the judgment-debtor. The other facts set up in the affidavit I regarded as immaterial. Hilton, J.—I concur in the above.