Lamonte v. Pierce

Cole, J. It is objected that the order appealed from is not appealable under the statute. Bu t we think this objection clearly untenable. The order belongs to the second class of appealable orders specified in section 10, ch. 264, Laws of 1860, being a final order affecting a substantial right made in special proceedings, or upon a summary application in an action after judgment. Whether the order for an attachment, which was made in the proceeding supplementary to an execution, is to be deemed an order in a special proceeding, or one made upon a summary application in the action after judgment, the second class is sufficiently broad to embrace it, as also this order refusing to set that aside. It is said that the order appealed from is not final, within the meaning of the statute, since it does not adjudge the defendant guilty of a contempt, but merely refuses to set aside an interlocutory order previously made. But it is very obvious that the practical effect of the order is to continue in force the attachment, and that the defendant is liable to be punished for his contempt unless he can purge himself of the charge on the hearing. The fact that further proceedings will necessarily be taken does not render the order which was made any the less final and conclusive upon the question decided. Upon the merits we think the attachment was properly granted. The defendant had neglected and refused to appear before the commissioner and make discovery concerning his property. For this apparently intentional disobedience-of the order of the commissioner, he was liable to be punished as for a contempt. It is argued that the affidavit upon which the 486 order was made, requiring bim to appear before tbe commissioner, was defective, and conferred no jurisdiction upon that officer. It is said that it fails to show that an execution had ever been issued on the judgment recovered against the defendant in the action, which had been returned unsatisfied. It seems to us that this objection is not sustained by the record. It does appear, with all reasonable clearness and certainty, that an execution had been issued on the judgment and returned unsatisfied. The language of the affidavit must have a natural and rational construction, and must be referred to the action in which the .examination was required. The facts stated in the affidavit showed that the commissioner had jurisdiction to make the order requiring the judgment debtor to appear and answer concerning his property ; and no reason is given which justified him in disobeying it. The criticism made upon the language of the affidavit, that it might refer to an execution issued and returned in some other action, seems to us without foundation. By the Court. • — ■ The order of the county court is affirmed.