Josuez v. Conner

Charles P. Daly, Chief Justice. The main question discussed upon this appeal was, whether the plaintiff should have been allowed to prove the existence of an order of arrest by secondary evidence. The complaint averred that the action was such in its nature that an execution against the person of the judgment debtor could lawfully issue to enforce the judgment; and that an order of arrest against Everaet had been duly granted in the action; which the answer traversed by denying any knowledge or information sufficient to form a belief as to whether the said pretended execution had any force or vitality in law. It was incumbent, therefore, upon the plaintiff, to maintain the action, to show that an order of arrest had been issued as averred in her complaint, which she failed to do. To do this, she was bound to produce the original order, or show that it could not be found after a diligent search for it. The order was returnable to the Marine Court. It appears from Mr. Wilder’s testimony that the last he saw of it was in the hands of Judge Spaulding, a judge of the court, who — 452 — is now dead; that all the witness knew respecting it was,, that he gave it to the marshal to serve, who is no longer a. marshal; that he made diligent search for him, but could not find him; that a motion was made to vacate the order of arrest, in which motion it was handed up to Judge Spaulding, who looked at it; hut what he did with it the witness could not say, further than that his impression was that the judge put it in his pocket. The proper place to look for it, the motion having been denied, was in the clerk’s office of the court, and if not found there, some inquiry should have been made of the deceased judge’s executors or other persons having his papers. Mr. Wilder testifies that he has examined the books and files of indices in the clerk’s office of the Marine Court, down to the present time, with great care, but did not find it. It ought, he says, to be there, but it is not, and he does not know where it is. The judge below held that this was not due diligence to entitle the plaintiff to give secondary evidence of the contents of the order, and we cannot say that the judge erred in so holding. The plaintiff claims that her motion for judgment on the pleadings should have been granted. The motion, in my judgment, was properly denied. The question was not whether the sheriff would have been protected if he had arrested the defendant upon the execution, the execution being regular upon its face. The action was brought against the sheriff for not returning it; and unless, as the plaintiff has averred, the action in which the judgment was rendered was such that an execution against the person could lawfully issue to enforce the judgment, or unless an order of arrest had been obtained, the execution was void, being unauthorized bylaw; and the plaintiff cannot maintain an action against the sheriff for failing to return an execution which the plaintiff had no right to issue. (Carpentier v. Willett, 28 How. Pr. 225; Wood v. Henry, 40 N. Y. 124.) It is an ample defense to this action, to show that the plaintiff had not sustained, and could not sustain, any injury by the officer’s failure to return such an execution, or by his returning that he could not find the defendant. It is no de — 453 — fense to an action for not returning an execution that it was irregular. If an execution is voidable for any defect or irregularity, it is no excuse for the officer, as that is a matter of which the party alone can take advantage. It is voidable whenever it is amendable, and it is not amendable if there was no authority whatever in the law to issue execution against the person. No execution can issue for the arrest of a person, ■except in the cases provided by law; and if issued upon a judgment in an action where the defendant is not, and could not be, subjected to arrest, it is not merely voidable, but void. Process which is void, although it may be regular on its face, the officer is under no obligation to execute, and he may, in an action brought against him for refusing to execute it, setup its invalidity. (Cornell v. Barnes, 7 Hill, 35; Earl v. Camp, 16 Wend. 567; Parmalee v. Hitchcock, 12 id. 97; Bacon v. Cropsy, 7 N. Y. [3 Seld.] 199; Albee v. Ward, 8 Mass. 79; Dillingham, v. Snow, 5 id. 558; Anon., 1 Ventr. 259; Squib v. Hale, 2 Mod. 29; S. C. 1 Freeman, 129.) If the plaintiff had simply averred that the officer was commanded by the execution to arrest the person of the •defendant, then it would have been incumbent upon the •officer to show in his justification, and as a defense to the -action, that the process was void. But the plaintiff saw fit to aver that it issued upon a judgment in an action in which the defendant was liable to arrest; and as the marshal traversed this averment the plaintiff had to prove it, it being a matter especially within his knowledge, as he brought the action. What was said by Justice Willard in Hutchinson v. Brand (9 N. Y. 210), upon which the appellant relies, so far as it implied that if the execution was issued in an action in which the defendant could not be arrested, the remedy'was by motion to set aside the execution; and that the sheriff was bound to execute it, was merely obiter. The case before the court was simply one of irregularity. The words “ or be discharged” had been omitted in the execution, which would not render it void, as it was amendable; and that it was defective in this respect, as I have already said, could be no defense to the sheriff, which was what was necessarily de — 454 — cided. in the case, whatever Justice Willard may have said in his opinion respecting the law. His attention, obviously, was not drawn to the distinction that the sheriff is not bound to execute process which is void, although regular upon its face, and to the long list of authorities, even before the recent cases I have cited from the Court of Appeals, that have held that to be the law ; and a like misconception is apparent in the use of the word “ void ” in the marginal note in Blivin v. Bleakely (23 How. Pr. 124), the other case relied upon by the appellant. If the plaintiff had had an official search made by the clerk of the Marine Court, and the order could not be found in the clerk’s office, I should have been disposed to regard that as a sufficient' exercise of diligence, as it should have been returned to the clerk’s office after the denial of a motion to discharge the arrest. The plaintiff’s attorney’s statement that he examined the files and books of indices in the clerk’s office, with great care, amounts to little more than his opinion of the nature of his search. What acquaintance he had with the mode of keeping papers in the clerk’s office is not shown ; nor what he really did, except the general statement that he examined the files and books of indices. When a paper that, ought to be in a public office is not readily found, the proper-course is to get the officer who is in charge of the office to-search for it, and prove the search by him, or by the deputy who made it, or give in evidence the certificate of the clerk that he had made a diligent examination in his office and that it could not be found (2 R. S. 552, § 13), which is the course usually pursued in such cases. An official search by the clerk or his deputy, however, is not indispensable. It. may be equally effectual when made by one not connected with the office, provided he has had an equal opportunity to-ascertain the fact, and has done all that the official could: have done. Thus, in Jackson v. Russell (4 Wend. 543), a search made in the surrogate’s office for a will by a person not connected with the office, but which was made under the surrogate’s direction, was deemed equivalent to a search by the surrogate himself; and in McGaley v. Alston (2 M. & W. — 455 — 206), a search made for a cancelled check in the office where such checks were kept, by the examination of several bundles of cancelled checks handed to the person applying by the official in charge of the office, was held sufficient. Winor v. Tillotson (9 Peters, 99) was a like case. The missing deed had been in the possession of General Wade Hampton. The plaintiff’s attorney applied to him for it, and the general gave the attorney a.bundle of papers, saying it contained all the titles to a certain tract of land, a title to a part of which was claimed under the missing deed ; and the deed, upon examination, not having been found by the attorney in the bundle, it was deemed a sufficient search. In Kaufman v. Congregation, &c. (9 Binn. 59), the search was made among the papers of the deceased person with whom the agreement had been left by the person with whom it had been deposited, which ■was held sufficient. In The King v. Stourbridge (8 B. & Cres. 96), the indenture had been sent to the overseers of the parish, and, if received, ought to have been put in a chest in which such indentures were kept; and a diligent search for it in the chest by an overseer of the parish was held to be enough. In Teale v. Van Wyck (10 Barb. 377), a search for a bond that ought to have been filed in the county clerk’s office was made by the plaintiff’s attorney in the places in the office where such bonds were usually filed, and could not be found. He did not testify that he made the search under the direction of the county clerk; but as no objection was made upon that ground in the court below, it was held that it could not be raised upon the appeal. I have thus reviewed all the cases upon which the appellant relies, and no one of them would warrant us in deciding that the judge below erred in holding that the evidence given was not sufficient to show that such a diligent search had been made, as to create the presumption that the order of arrest was lost, or establish that it could not be found, so as to entitle the plaintiff tó give secondary evidence of its contents. A simple mode existed of proving that the order could not be found in the clerk’s office, by obtaining a certifi•cate of that fact from the clerk (2 R. S. 552, § 13); and — 456 — this being the case, it would be encouraging a very loose practice to allow as equally satisfactory the testimony of an attorney, that he has searched with great care, without any thing before us to warrant oitr assuming that he knew where and how to search for the order; or any evidence that he applied to the clerk, or any of the officials in the office, for information; or made his search under their supervision or direction. The judgment should therefore be affirmed. Robinson and Joseph F. Daly, JJ., concurred. Judgment affirmed.