Rider v. Alexander

The opinion of the Court was delivered by Chifman, Ch. J. There appears to have been too little atten [273] iron paid to the regular mode of proceeding, in the case of Rider, the present plaintiff against Taft and the trustee Barnes, in the County Court. The mode of proceeding, pointed out in the trustee act, is very plain : the statute provides, that unless it shall appear that personal notice has been given, both to the trustee and principal debtor, the cause shall be continued; and before the plaintiff can obtain judgment against the principal debtor, notice must be given, in the same manner, as is provided in the fifty fifth section of the judiciary act. If the person cited as trustee, has been served with personal notice, he is bound to appear at the first term, to be examined, or make a sufficient excuse for his not appearing in person. If he shall appear at the first term, or at a subsequent term, to which the cause shall have been continued, he is to disclose, on oath, whether he have in his possession, any money, goods, chattels, rights or credits of the principal debtor, and to what amount. And, if it be found that such trustee had in his possession, at the time he was served with the process, money, goods, &c of the principal debtor, it is to be entered of record, and he is made liable therefor, to the amount of the judgment to be obtained against the principal debtor, if there be so much in his possession. On such finding, the plaintiff may proceed to obtain judgment against the principal debtor, under the fitfy fifth section of the judiciary act, before mentioned 5 but can have no further process against the trustee, until such judgment be obtained. If no money, goods, &c. are found in the possession of the person cited as a trustee, he shall not be adjudged a trustee ; and, unless it shall appear, that the principal debtor shall have been personally served with notice of the process, or shall have actually appeared in the suit, no further proceedings shall be had upon the process. If property be found in the possession of the trustee, no execution can issue against him, until judgment shall have been obtained against the principal debt- or. If the goods and chattels found in the possession of the trustee, are such as are liable to be sold on execution, the execution shall first issue against such goods and chattels, in the possession of the trustee; and if the officer, having such execution shall return, that the trustee refused to expose such goods and chattels, or to pay the amount, the creditor may have a rule of Court on the trustee, to shew cause why the creditor should not have an execution against such trustee, his goods and estate; and. no just cause being shewn, [274] the creditor shall have execution accordingly. In all other cases, where the trustee is found to have in his hands money, of the principal debtor, or some debt or demand which he is holden to satisfy in money only, execution is to issue, in the first instance against the trustee his goods and estate. If there be sufficient found in the hands of the trustee, after deducting the costs, which shall be allowed him by the Court, to satisfy the judgment against the principal debtor, no execution is to issue against him, if not, execution is to issue against him for the balance. There are other provisions in the act, but I have recited all those which have any bearing on the case before the Court. In this case, two objections have been made to the admission of the record, in support of the plaintiff’s title. 1. That the execution through which the plaintiff attempts to derive his title, has no judgment to support it. ' The execution recites a judgment of June term, 1810 ; but the record is of a judgment, entered up, June term, 18Of. The Court consider this an irregularity; there is no record to support the execution, as issued. It cannot be admitted, that the taxation of additional costs, and the award of execution, at June term, 1810, which were incidents in the suit, had the effect to bring forward, and fix, as of that term, a judgment which had been fully made up and entered of record, at a former term. In a trustee suit, execution is sometimes necessarily awarded.at a term subsequent to that, at which the judgment was entered up against the principal debtor, but the execution must recite the judgment, as of the term when it was entered up. The 2d objection is, that the execution includes two separate and distinct judgments, one against Taft, the principal debtor, and one against Barnes, the trustee. The Court think this is also a fa" tal irregularity, as is very apparent from the explanation which has been given of the proceedings under the trustee act. The judgment against the principal debtor, and the judgment against the trustee, are distinct and separate judgments, to all intents and purposes, and can no more be joined in the same writ of execution, than separate judgments in favor of the saíne plaintiff, against several defendants in different suits. In examining the record we find another fatal irregularity, which has not been adverted to by the counsel on either side. It appears that the principal debtor had absconded, and did not reside in this [275] state, either at the time the suit was commenced, or at any time while it was pending in Court, that he had no personal notice of the suit, and that he did not appear $ yet, judgment was taken against him, by default, at the first term of the Court, contrary to the express provisions of the statute. This renders the judgment, as per-feet a nullity, as though it had been rendered without any antecedent process. It follows, that all the proceedings, had under that judgment are void, and that the plaintiff could not, thereby, acquire any title to the premises demanded. Let the verdict be set aside and a non suit entered.