
    Edmonston v. McLoud and another.
    The equitable lien obtained by a judgment creditor upon the property of his debtor, by the commencement of an action in the nature of a creditor’s bill, does not relate back to proceedings supplementary to execution upon the same judgment, which did not proceed to the appointment of a receiver.
    After a judgment debtor had been served with an order requiring him to appear before a county judge to be examined upon proceedings supplementary to execution, and enjoining him from making any disposition of his property, he left the state and no further proceedings were had under the order. A person under contract, made before the recovery of the judgment, to pay the judgment debtor $300 whenever the debtor should surrender to him the possession of a house, paid the money to the debtor’s wife, with notice of the facts before mentioned; Held, that he could not be made liable to the creditor for the $300 thus paid.
    When a verdict or the report of a referee for the plaintiff is set aside, upon a case, and it is apparent that no possible state of proof applicable to the issues will entitle him to a judgment, the appellate court should render final judgment for the defendant, and should not award a new trial.
    The case of Asfor v. DAmoreux (4 Sold., 107) explained.
    Appeal from the Supreme Court. The plaintiff averred in his complaint, and proved upon the trial before a referee, that on the 21st November, 1850, he recovered judgment against the defendant Stiney; execution thereon was returned unsatisfied; he instituted supplementary proceedings against Stiney, and on the 2d December, 1850, the county judge of Ontario county made an order requiring Stiney to appear before him to be examined on the 6th December, 1850, and enjoining him from disposing of any property until further order. The order was served on Stiney on the fourth December, and a copy was served on the same day on McLoud. Stiney did not appear, and an attachment was issued against him, but he left the state before it could be served. On the 30th October, 1850, before the recovery of the plaintiff’s judgment, McLoud bought of Stiney the interest of the latter in twenty-three acres of land, under a contract for the conveyance thereof by one Woods, and entered into a contract to pay Stiney $300, part of the purchase money, when he should receive possession of a house and garden, part of the twenty-three acres, the possession of which Stiney reserved indefinitely. On the 30th December, 1850, McLoud, with full knowledge of all the facts above stated, paid the $300 to Stiney’s wife and took possession of the house and garden. The complaint demanded judgment that the payment by McLoud of the $300 should be declared fraudulent and void, as against the plaintiff, and that McLoud should be required to pay the same with interest. The referee made a report in favor of the plaintiff, upon which judgment was entered i accordance with the prayer of his complaint. Upon appea the Supreme Court, at general term in the seventh distric' reversed the judgment absolutely, and rendered judgmen for the defendant for costs. The plaintiff appealed to thi. court.
    
      Timothy Jenkins, for the appellant.
    
      Nicholas Hitt, for the respondent.
   Harris, . J.

By the commencement of the proceedings supplementary to execution against his judgment debtor, the plaintiff acquired an inchoate lien upon his interest, whatever that may have been, in the lot purchased of Woods. But to perfect this lien and- secure the benefit of his proceedings, it was necessary that he should obtain an order under the two hundred and ninety-seventh section of the Code, directing the property of his debtor to be applied in satisfaction of his judgment, and also procure the appointment of a receiver to carry that order into effect. Such orders would have had the effect to divest the debtor of his interest in the property, and to vest it in the receiver for the benefit of the plaintiff. (Porter v. Williams, 5 How., 441; S. C. on appeal, 5 Seld., 142.) I think, too, that these proceedings might have been had, notwithstanding the failure of the judgment debtor to appear in obedience to the requirements of the order served upon him.

But these proceedings were abandoned by the plaintiff, and it is now too late for him to derive any benefit from them. This suit was commenced after the judgment debtor had received from the defendant McLoud the full amount of his interest in the lot, and left the state. I know of no principle upon which the lien acquired by the plaintiff upon the debtor’s property by the commencement of this action, which is in the nature of a creditor’s bill, can be made to relate back to the proceedings before the county judge. The two proceedings have no proper relation to each other. As against the defendant McLoud, the plaintiff has established no cause of action whatever. The judgment on the report of the referee was, therefore, properly reversed.

But it is insisted that the Supreme Court upon such reversal was not authorized to render final judgment. The case of Astor v. L’Amoreux (4 Seld., 107) is relied upon to sustain this position. In that case the plaintiff had recovered a judgment in an action for rent. There was no pretence that the allegations in his complaint were not sufficient, if proved, to sustain the action. He had given such proof as induced the court, at the trial, to render judgment in his favor. Upon appeal, the Superior Court reversed the judgment, and instead of ordering a new trial, rendered final judgment for the defendant. This was clearly wrong. It was impossible for the appellate court to know that, though it might deem the proof which had been given insufficient to sustain the judgment, the defect might not be supplied upon another trial.

But where the appellate court can see that no possible state of proof, applicable to the issues in the case, will entitle the party to a recovery, it is not necessary, or even proper that a new trial should be awarded. In my judgment this is such a case. The plaintiff cannot, by any proof adapted to his own allegations, entitle himself to a judgment in his favor. "

The judgment of the Supreme Court should therefore be affirmed.

All the judges concurring,

Judgment affirmed.  