
    Nancy Moyer, Respondent, v. George Moyer, Appellant, Impleaded with Jacob Moyer.
    
      Supplementary proceedings — an order appointing a receiver must be filed — the debtor cannot be compelled to convey Ms realty to the receiver — a creditor'must proceed against real property first by execution — when a sheriff’s return may be. shown to be false — the debtor cannot be ordered to transfer exempt pi'operty — a notice of appeal {referring to them) bringing up intermediate orders, although, the orders were not appealed from in time.
    
    Upon an appeal taken by George Moyer, a judgment debtor, from an order of the Supreme Court directing him to execute to a receiver of his property, appointed in supplementary proceedings, a conveyance of all his real and personal property, it appeared that George Moyer and Jacob Moyer, against whom. . a judgment had been recovered on the 11th day of January, 1892, on which an execution was issued and returned wholly unsatisfied, were the owners-of undivided interests in a parcel of land.
    Proceedings supplementary to execution were taken against George Moyer, in which a receiver of his property was appointed, and on July 11,1894, an order was made at Special Term oh notice to-him directing him, unless the judgment, was paid in twenty days, to convey all his property to the receiver; the judgment not having been paid, the Special Term, on the 1st day of September, 1894, without notice to George Moyer, ordered that upon personal service upon George Moyer of a copy of the order of that date, George Moyer should surrender possession to the receiver of all of. his real and personal property, and convey to him all the real estate which he owned on the day when the judgment was recovered. On the 20th day of October, 1894, the Special Term. denied a motion of Moyer to vacate the order granted on September 1, 1894, and on the 9th day of March, 1895, the Special Term, upon the motion of the receiver, and upon the appearance of all parties, made a final order, reciting that it appeared to the court that the said George Moyer had the legal title to certain Teal estate, and was the owner and in possession of certain personal property when the said receiver was appointed, by which it adjudged George Moyer to be guilty of contempt in refusing to obey the ex pourte order of September 1, 1894, and imposed a fine upon him, and directed that he be committed to jail until he conveyed all his real and personal property to the receiver.
    It did not appear from the record that the order appointing the receiver, or any certified copy of it, had been filed in the office of the clerk of the county of Oswego, where the judgment roll in the action had been filed, and where the ..real property of George Moyer was situated. George Moyer was a married man, had a family and was a householder.
    On an appeal by George Moyer from the order of March 9, 1895, with notice of an intention to bring up for review on such appeal the order made on September 1, 1894, and all proceedings under it, including the order to show cause . why the same should not be vacated, and also the order denying the defendant that relief.
    
      Held, that, as the proceeding was one to punish the defendant for a contempt, it was requisite that every jurisdictional fact necessary to support the proceeding should appear affirmatively;
    That it was a fatal objection to the proceeding that it did not appear that the order appointing the receiver, or a certified copy of it, had been filed in the proper county clerk’s office;
    That the real property of the defendant could not, under the Code of Civil Procedure, vest in the receiver until the order had been filed;
    That if it should be assumed that the order had been filed in the proper county, then there was no necessity for a conveyance of the real estate to the receiver, as the title to it had already vested in him;
    That there was now no power given by any statute which authorized the court to compel a judgment debtor to convey his real property to'a receiver appointed in supplementary proceedings;
    That a sale of the real estate of a judgment debtor, made by a receiver, deprived the judgment debtor of the right of redemption, given to him by the statute in the case of a levy and sale under an execution, and that, notwithstanding the fact that the title might, in fact, have passed to the receiver in the case at bar, upon the filing of the order of his appointment in the proper county, the court would not lend its aid to this method of reaching a debtor’s property when an execution was available, and when it was the proper remedy.
    That the court was not concluded by the sheriff’s return of nulla bona on an ■ execution, in a case where the record showed that the return was false;
    That the order in question was objectionable, in that it directed the defendant to transfer to the receiver all "his personal property, notwithstanding the fact that he was a householder having, a family, and- was, therefore, entitled to the statutory exemptions;
    
      That a claim that the court could not consider the order of September 1, 1894, because it was taken by default, was not tenable;
    That, under section 1858 of the Code of Civil Procedure, the notice of appeal brought up for review the order of September 1, 1894, as well as the order which denied the motion to set aside or modify it; and that the court was, therefore, in a position to review the order of September 1, 1894;
    That, as the Code permitted the review of prior orders, in connection with the one appealed from, there was no force in the objection that the orders of September 1, 1894, and of October 20, 1894, could not be now reviewed, because notices of appeal from those orders were not served within the time prescribed by statute for an appeal from an order.
    Appeal by the defendant, George Moyer, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oswego on the 30th day of March, 1895, reciting a previous order made by the same court, at Special Term on the 1st day of September, 1894, directing the defendant George Moyer (the appellant here) to surrender and deliver up to Reuben ÍT. Crandall, a receiver appointed in proceedings supplementary to execution, possession of all his personal property and to convey to the said Reuben A. Crandall, as receiver, all his real estate, and that the said George Moyer had refused to do so,, whereupon the court adjudged that the said Moyer was guilty of contempt of court in refusing to obey said order of September first, and that he pay a fine of seventy dollars to said receiver to satisfy the costs and expenses of the proceedings, and that he be committed to the county jail of Oswego county until such fine be paid and until he executed and delivered, to the said receiver an instrument of conveyance transferring all his personal property to such receiver and assigning and conveying to him all the real estate of the said George Moyer.
    The notice of appeal further stated, that the appellant intended “ to bring up for review, incidentally, said order so granted and made September 1, 1895, and all proceedings taken upon or under the same, including an order to show cause why the same should not be vacated, set aside or modified upon affidavits made and served, and order thereunder denying such relief.”
    
      John J. Lamoree, for the appellant.
    
      O. M. Reilly, for the respondent.
   Ward, J.:

The defendants George Moyer and Jacob Moyer, on the 11th day of January, 1892, were the owners dn fee of about sixty-five acres of land in the town of Schroeppel, Oswego county, George Moyer owning five-sixths interest therein and Jacob Moyer one-sixth interest, being the remainder. On the date aforesaid the plaintiff obtained a judgment against the defendants for $630.32, and on the 18th of January, 1892, an execution was issued to the sheriff of 'Oswego county against the' defendant George Moyer, which it ¡appears was returned by the sheriff wholly unsatisfied. Thereupon proceedings supplementary to execution were instituted against the defendant George Moyer, and afterwards, and upon personal notice to him, a receiver was appointed on or about the 22d day of May, 1893, such receiver being Reuben A. Crandall of Phoenix, R. Y.

The order appointing the receiver was made by W. Becker, special surrogate of Oswego county.

On the 14th of July, 1894, the Onondaga Special Term of this court at Syracuse, upon the motion of the receiver, made an order upon notice and upon appearance by the receiver and the defendant, compelling the defendant to turn over and convey the property to "the receiver; directing that the defendant have twenty days in which he or his attorney, or any person holding a subsequent lien upon the lands of the defendant, could pay the amount of the judgment upon which the supplementary proceedings therein were instituted, and, in case such payment should be made, the plaintiff to assign her said judgment to the persons paying such sum; that in case default .should be made in such payment, then the said receiver’s motion ¡should be granted, With ten dollars costs of motion.

On the 1st day of September, 1894, the Special Term in Onondaga county, upon the apjDlication of' the attorney for the receiver, upon proof that the last-mentioned order had not been complied with, without notice to the defendant, ordered that the motion made by the receiver on the fourteenth of July aforesaid be granted, and that the defendant, upon personal service upon him of the copy of the order made on the first day of September aforesaid, and notice of the entry thereof in Oswego county clerk’s office, surrender possession to the receiver of all his real estate and personal property, and transfer and convey to the receiver all the real estate which he, the defendant, owned and had title to on the 11th day of January, 1892.

On the 20th of October, 1891, the Special Term of Onondaga county, upon an order obtained by the defendant to show cause why the last-mentioned order should not be vacated, upon the hearing of the parties, ordered that the motion be denied, with ten dollars costs.

On the 9th day of March, 1895, the Onondaga County SpeeialTerm made a final order, upon the motion of the receiver and upon the appearance of the parties, to punish the defendant for contempt in not obeying the ex parte order of September' first, aforesaid, and adjudged the defendant guilty of contempt of court in refusing to obey such order, and in refusing to deliver up possession of his real estate to the receiver, and in refusing to transfer to him his personal property, and in refusing' to convey to the receiver his real estate which he owned and had title to on the 11th day of January, 1892, and in refusing to execute, acknowledge and deliver to said receiver an assignment and conveyance as directed by said order of September first; and that the defendant be fined seventy dollars for costs, and that he be committed to the jail of Oswego county until such fine was paid, and until he executed and delivered the conveyance and assignment presented to him by the. receiver, Reuben A. Crandall, on the 21st of January, 1895, a copy of which was annexed to the order. That was a paper in the form of a conveyance and transfer referring to the order of September first and reciting that, in obedience to such order, the defendant granted, assigned and transferred to such receiver all his lands and real estate wheresoever the same are situate which belong to or were held in trust for the defendant or in which he had any right, title or interest on the 11th day of January, 1892; also all his personal property, to have and to hold the same unto the said receiver as such, subject to the control and direction of the officer appointing the receiver and of any court having jurisdiction in the premises. This instrument was under seal with an acknowledgment prepared, and was tendered to the defendant prior to the granting of the order of September first, and its execution was demanded by the receiver and refused by the defendant.

The order of March ninth contained the recital that it appeared to the court that the said George Moyer had the legal title to certain real estate and was the owner, and in possession of, certain personal property at the time said receiver was appointed.

• It appeared also uncontradicted in the papers upon which this last order was granted that at and from the entry of judgment, and at the time of the appointment of. the receiver, and continuously to the granting of the said order, the defendants, George and Jacob Moyer, were the owners of the said real estate of sixty-five acres upon which the plaintiff’s judgment was a lien and which were liable to levy and sale upon execution and of the value from $2,800 to $3,000, upon which there was an incumbrance of only $1,000 prior to the plaintiff’s judgment. It also appeared that the defendant George Moyer was a married man, having a family residing in Oswego county; that the plaintiff and her attorney were aware at the time the plaintiff’s judgment was obtained and subsequently thereto that the defendants were, such owners; that the-defendant Jacob Moyer seemed to be acting with 'the plaintiff to force the collection of the said judgment out of the defendant George Moyer through means of supplementary proceedings, and-that the attorney of the plaintiff obtaining such judgment had declared, in effect, that the said Jacob Moyer was his client and. that he intended to protect him in the .premises.

The defendant seasonably and duly appealed from the last-mentioned order of March 9, 1895, and in his notice of appeal stated that' he intended to bring up for review upon such appeal the order made at Special Term September 1,1894,. and all proceedings taken thereunder, including an order to show cause why the same should not be vacated and set aside or modified upon affidavits made and served, and the order thereunder denying such relief.

. - Though not referred- to in-' the points submitted upon this appeal, we find ourselves confronted with the difficulty -that it nowhere. appears from the record that the order appointing the receiver has been filed in the office of the clerk of the county of Oswego,, where the judgment roll iii the action had been filed and where the real property of the defendant was .situated, or any certified copy of such order, as required by section 2463 of the Code of Civil Procedure, before the property, real or personal, of the defendant could vest in the receiver.

It is true that the affidavit of the receiver states that he was appointed by the special surrogate of Oswego county, and that he duly qualified as such receiver and has ever since been the duly appointed, qualified and acting receiver of the property of the said G-eorge Moyer.

This is simply stating a conclusion. There is a statement in the papers that a certified copy of the order appointing the receiver was served, etc., but by whom granted or from what source the certified copy came, does not appear.

The jurisdictional facts are not given; and in the proceedings to punish fór a contempt, every jurisdictional fact necessary to support the proceedings must affirmatively appear.

The objection here suggested is fatal to the orders appealed from, because, unless the property of the defendant has vested in the receiver by the filing of the order appointing him in the proper-county, he has no claim to that property or title to it, and the court can make no order transferring it to him. Kimball v. Burrell, 14 N. Y. St. Repr. 536.)

But, assuming that the fact of the filing of such order in the proper county had appeared, the respondent must meet another difficulty of a formidable character in the fact that if absolute title had vested in the receiver in the real estate of the defendant, there was no necessity for a conveyance of the real estate from the defendant to the receiver, and we have been referred to no statute authorizing such a conveyance.

Section 2447 of the Code of Civil Procedure provides that “ the judge, by whom the order or warrant was granted, or to whom it is returnable, may, in his discretion, and iqion such a notice, given to such persons as he deems just, or without notice, make an order, directing the judgment debtor, or other person, immediately to pay the money, or deliver the articles of personal property to a sheriff, designated in the order, unless a receiver has been appointed, or a receivership has been extended to the special proceeding, and in that case to the receiver.” This is the only statutory authority authorizing the transfer of property to the receiver from the judgment debtor in proceedings supplementary to execution.

We do not lose sight of the fact that the order appealed from was made by the court and not by a county judge, and that the court may do what ttie county judge has not the power to do, but the consideration of that question is not necessary to the disposition of this case.

We are referred to cases which arose under the Code of Procedure. Under that Code it was in the power of the judge to order any property of the-judgment debtor not exempt from execution to be applied toward the satisfaction of the judgment (§ 297), and under'that Code the case of Fenner v. Sanborn (37 Barb. 610) and kindred cases were decided. This section of the Code, with others, was repealed by chapter 245 of the Laws of 1880, and the Code of Civil Procedure supplies all of the provisions now relating to proceedings supplementary to execution as such. (Smith v. Tozier, 42 Hun, 24.)

In The First National Bank of Canandaigua v. Martin (49 Hun, 571), decided in the fifth department, General Term in 1888, the defendant in the judgment was the owner of a house and lot in Canandaigua, liable to execution at the time supplementary proceedings were instituted against him, and ,a receiver therein was appointed. The county judge of Ontario county made an order that the defendant convey such-real estate to the receiver. Judge Haight, delivering the opinion, held that the power conferred upon the judge under section 2447 of the Code of Civil Procedure was limited to the personal property of the judgment debtor; that as to the real estate, there was no power in the county judge to compel such a conveyance, and there was no necessity for it, as the title to' the real estate vested in the receiver under the Code by operation of law.

That such title vests by operation of law and a conveyance is unnecessary and improper, is sustained by Manning v. Evans, by the General Term of the old fourth department by Judges Smith, Talcott and Hardin (19 Hun, 500).

To the same effect is Wing v. Disse (15 Hun, 190), and Kimball v. Burrell (supra) where the court, Barnard, P. J., forcibly states: “ If the order is filed (appointing the receiver), then by the terms of the section (2468), the title of the debtor in the real-estate becomes absolutely vested in. the receiver, and no deed is needed, and no power is given to compel one. The receiver’s rights ale perfect, and he represents the creditor in the action in which he was appointed, and can file his complaint to set aside the judgment against the administrator as fraudulent and collusive. A deed will give no greater right than is given hy the statute.”

We are referred to In re Crane (81 Hun, 96; 30 N. Y. Supp. 616), where the General Term of the fifth department held that the court had power at Special Term to direct the transfer, hy the judgment debtor to the receiver in supplementary proceedings, of a land contract and certain books of account; that the county judge had the same power, and the exercise of that power was proper.

There, be it observed, the property transferred was personal, with the exception of the land contract, and the possession of that identical paper in the receiver was necessary as evidence of his title thereto. A very different case from one in which, as in the case at bar, the title to the real estate is a matter of record and can be reached by execution.

The appellant presses upon our consideration the point that the order appealed from should not have been granted, because of the clear and perfect remedy that the plaintiff had to collect her judgment by the ordinary process of levy and sale of the real estate of the defendants by execution. The bald case seems to be presented here of a deliberate attempt to avoid the primary process of collecting the debt and to resort to the supplementary proceedings. Of this the Special Term was made aware by the papers upon which the orders appealed from were granted, and no doubt can exist of our right to review these orders upon this phase of the case.

Westbrook, J., in The Albany City National Bank v. Gaynor (67 How. Pr. 421-423) pithily says: The owner of a judgment which is a lien upon real estate seeks to obtain possession of the real estate through a receiver appointed in supplementary proceedings without a sale under the judgment. This cannot be done, for it would be a practical repeal of the statutes providing for the sale of real estate under a judgment.” (Citing Bunn v. Daly, 24 Hun, 526; Tinkey v. Langdon, 13 N. Y. Wkly. Dig. 384.)

The statutes relating to these proceedings (supplementary to execution) and to the sale of real and personal property on execution are in pari materia and must be construed together (Bunn v. Daly, supra; Mason v. Hackett, 35 Hun, 241; Wing v. Disse, 15 id. 190); and Haight, J., in The First National Bank of Canan daigua v. Martin (49 Hun, supra, at page 573) says that proceedings supplementary to the execution are not intended to take the place of or be a substitute for the execution, and proceeds: “ The judgment is a lien upon the house and lot in the village of Canandaigua which has riot been sold, The plaintiff has the right to sell these' premises upon the execution, and until it has exhausted its remedy by execution these proceedings are not available. If the plaintiff should be permitted to procure the appointment of a receiver, and thus vest the title of the real estate of the judgment debtor in sucll receiver, it could be sold and the judgment debtor deprived of the right of redemption which is given, to him in case of the sale by execution. It was the duty, therefore, of the plaintiff to have caused the house and lot to be sold, on execution, thus exhausting its remedy by execution before resorting to these proceedings.”

It will be observed in that case that the receiver in supplementary proceedings had already been appointed; but the condemnation there pronounced, although the title may have passed to the receiver upon the filing of the order of his appointment in the proper county, is against the court lending its aid to this method of reaching the debtor’s property when an execution was available and was the proper remedy.

The defendant also claims that the order adjudging him in contempt should'be set aside because it directs the transfer of all- of his personal property, whereas the defendant, having a family and being a householder, was entitled to certain exempt property under the Statute of Exemptions, which could not be taken away from him, and which is preserved to him by section 2463 of the Code of Civil Procedure, which provides that the chapter on supplementary proceedings does not “ authorize the seizure of, or other interferences with, any property which is especially exempt by law from levy and sale by virtue of an execution.”

This objection appears in the papers used at Special Term and may be considered here.. '

There is much force in this objection and it seems to be well taken.

The learned counsel for the respondent makes the objection that we cannot consider the order of September 1, 1894, directing the defendant to execute the assignment of the real and personal estate, because that order was taken by default, and no appeal lies from an order taken by default. It is true this order was ex parte, and, hence, liable to the objection pointed out in Reed v. Champagne (5 N. Y. Wkly. Dig. 227), where the court held that the order adjudging the defendant in contempt must stand on the validity of the order directing the assignment; that such an order could not be made exparte / that in such a case there was no jurisdiction of the person of the defendant, and he was not bound to obey the order, as it was void. But was this, strictly speaking, an order taken by default? Such an order implies that the defaulting party had notice of the application therefor, and had failed to appear. There is nothing in the record to indicate that there was any notice given to the defendant of the application for this order. It is true that in the order of. July 14, 1894, above referred to, it was provided that, unless the defendant availed himself of the privileges of that order, the motion to compel the defendant to transfer his property to the receiver should be granted; but this did not empower the receiver, xipon making proof of the default of the defendant in complying with the conditions of the July order, to take the further order which he secured in September without notice to the defendant, because the defendant was entitled to an opportunity, before such order was made, to be heard upon the question whether he had complied with the order of July fourteenth or not; and, therefore, the September order was not an order taken by default, but an ex parte order coming within the condemnation of Reed v. Champagne (supra).

By section 1358 of the Code of Civil Procedure it is provided that “ an appeal, authorized by this title, brings up for review any preceding order, made in the course of the special proceeding, involving the merits, and necessarily affecting the final order appealed from, which is specified in the notice of appeal.”

As before said, the notice of appeal from the order adjudging the defendant in contempt, brought up for review the order of September first and the order denying the motion to vacate, set aside or modify-it, which was the order of October 20, 1894, above referred to; so that all the questions we need to consider concerning the last-mentioned order, the order of September first and that of March ninth, adjudging the defendant in contempt, are before us by force of the statute quoted.

The respondent makes the further objection that the orders of October and September cannot be reviewed here, because the notice of appeal as to such orders was not served within the time prescribed by statute. There is no such limitation in the section of the Code imposed upon the consideration of the orders prior to that of March ninth. The object of permitting these prior orders to be considered in connection with the one actually appealed from, is to bring before the court not only such order, but all orders upon which it is based, referred to in the notice of appeal, and the subject-matter of these orders is consequently clearly before us.

The respondent makes the further objection that we are concluded by the sheriff’s retm-n upon the execution, upon the question whether the defendant had property liable to sale upon execution, and that it must be presumed that the sheriff did his dirty, and, if the sheriff made a false return, the defendant has his remedy, etc. This principle does not apply here, where the court is reviewing the proceedings of its own officer, and determining whether it shall compel the collection of a debt, through supplementary proceedings by a receiver, who is also its officer, and under its control (§ 2471, Code Civ. Proc.), when the statute has provided that in a case, such as is under consideration, it should be done by execution, where the defendant should have the right to redeem his property from a sale under an execution within a certain period, if such sale were had. Though the sheriff has returned the execution unsatisfied, the record in this case discloses that such return was false, and wé are not concluded by it. More than that, there is strong evidence in the record that the return of this officer was, for the purpose of exonerating one of the defendants in the judgment and collecting the debt out of the other defendant, by the direction of the plaintiff’s attorney, through the means of supplementary proceedings. This court will not refuse justice to an appellant because it may be technically barred by the mistaken or collusive acts of one of its officers. Indeed, the very order of March ninth appealed from, as we have said, contains the statement that the said George Moyer had the legad title to certain read estate and was the owner and in possession of certain personal property at the time the receiver was appointed.

We deem it unnecessary to consider the other objections raised by the defendant, as they were without merit.

The order appealed from should be reversed, with ten dollars costs and the disbursements of the appeal.

All concurred.

Order reversed,, with ten dollars costs and disbursements.  