
    James H. Dunham, William T. Buckley et al., Resp’ts v. Bernard Reilly, Late Sheriff, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Executions—Execution issued to sheriff out of the city court of-New York—When void.
    Executions issued to the sheriff out of the city court of New York without filing transcripts or docketing the judgment in the county'clerk’s-office are absolutely void.
    ' 3. Same—Laws 1875, chap. 479, § 53, was repealed byLaws 1877, chap. 417, § 1, sued. 49.
    Section 53 of chapter 479, Laws 1875, which enacted that the execution on any judgment of the marine court (now the city court of New York), must he directed to the sheriff, etc., was, together with other portions of said chapter repealed by Laws 1877, chap. 417, § 1, subd. 49.
    3. Same—Code Crv. Pro., chap. 13 went into effect September 1, 1877.
    Chapter 13 of the Code Civil Procedure was made applicable to all executions issued out of any court of record other than those issued to a constable or marshal, and so governed all executions issued out of a court of record to a sheriff on and after September 1, 1877.
    
      
      4. Same—Can only be issued to sheriff where judgment is docketed in SOME COUNTY CLERK’S OFFICE—CODE ClV. PRO., § 1365.
    By Code Civ, Pro,, § 1365, which provides that executions against prop' erty ‘ ‘ can he issued only to a county in the clerk’s office of which the judgment is docketed,” the power to issue the process is given where in some county there is the preserihed docket and only in that event.
    5. Same—Officer who proceeds to execute a void process as if valid CAN ALLEGE ITS DEFECTIVE CHARACTER AS A DEFENSE.
    The doctrine that the officer who receives the process, and treating it as valid, proceeds to execute it cannot allege its defective character, has its proper application to cases where the defect is capable of amendment or may he waived, and the process is merely irregular and cannot apply where it is wholly void.
    Appeal from a judgment of the supreme court, general term, first department, reversing the judgment of the New York county special term, sustaining the demurrer to the amended complaint. The facts are sufficiently stated in the opinion.
    
      Henry Thompson, for appl’t; Osborne E. Bright, for resp’ts.
    
      
       Reversing 14 N. Y. State Rep , 382.
    
   Finch, J,

The question in this case arises upon a demurrer. The complaint sets out what is claimed to be a cause of action against the defendant, who was sheriff of the city and county of New York, for a false return. It avers that on the 6th day of January, 1879, the plaintiffs recovered four judgments against one Rodgers and others in the New York marine court, which were duly filed in the office of the clerk of said court, but transcripts of which were not filed, nor said judgments docketed in the office of the clerk of the city and county of New York, until the ninth day of January, 1880; that on said 6th day of Januaty, 1879, executions on said judgments were issued to the sheriff of said city and county, in the usual form of executions against property; that on the 8th day of March, 1879, these executions were returned by the sheriff nulla bona, which return was false. The demurrer interposed to this complaint, raises the question of the validity of the executions issued to the sheriff, and if invalid whether they were wholly void or merely irregular or voidable, and whether their defective character relieves the sheriff from liability for the falsity of the return. The special term sustained the demurrer, but the general term reversed that judgment, and pronounced the executions valid and regular. This result was reached by holding that the validity of the process was determined by the marine court act of 1875, (chap. 479, sec. 53) and not by the provisions of the Code of Civil Procedure, (Secs. 1365 and 1369;) and that is the first and principal inquiry in the case.

The act of 1875 was expressly repealed in the repealing act of 1877, except section 41, and sections 43 to 52, inclusive; and sections 54 and 55 (Laws of 1877, chap. 417, sec. 1, sub-div. 49). This repeal blotted out section 53 of the1 act of 1875, which is the provision relied upon, and which enacted that the execution on any judgment of the marine court must be directed to the sheriff although it also permitted execution to be issued to any one of the marshals of the city, but limited their power to the levy upon and sale of personal property only. Under this section it had been held by the common pleas that an execution upon a judgment of the marine court might issue at once to the sheriff, and a transcript and docket in the county clerk’s office were only necessary to effect a lien upon real estate. Palmer v. Clark, 4 Abb. N. C. 25. The repeal of section 53 of the act of 1875, however, carried down with it the authority derived from that section, and deprives the conclusion of the general term of the foundation upon which it was built. When the executions against Rodgers were issued, their validity could gain no support from a statute which had been repealed, and we must look elsewhere for the authority by which they are to be tested.

The repealing act of 1877 was of course intended to dispense with statutes made needless by or inconsistent with the Code of Civil Procedure, the first thirteen chapters of which were passed at the previous legislative session. By that Code the issue of executions by courts of record was regulated. The marine court was a court of record (Laws of 1872, chapter 629, §1; Code Civil Pro., § 2, subd. 15), and so its final process was brought within that regulation. Code Civ. Pro., chap. 13, §§ 1365 and 1369.

The Code, by its terms, was to take effect on the first day of May, 1877. The temporary act of 1876 (chapter 449), was passed to explain, define and regulate the appplication of the Code, and contained this provision: “Chapter thirteenth applies only to an execution issued on or after the first day of May, 1877, out of a court of record, other than an execution issued out of such a court and directed pursuant to law to a marshal or constable, and to sales and other proceedings by virtue of an execution directed to a sheriff and delivered to him after that date.” Both the Code and the temporary act were suspended in their operation until the first day of September, 1877, but on that day went into effect. At that date the situation was this: The fifty-third section of the marine court, act of 1875, regulating the issue of its executions had been repealed; chapter 13 of the new Code had been made applicable to all executions issued out of any court of record other than those issued to a constable or marshal, and so governed all executions issued out of a court of record to a sheriff on and after September 1, 1877; and the executions issued in 1879 to the present defendant were, therefore, controlled by the provisions of the Code. Its last nine chapters were passed in 1880, and section 3347 in subdivision 10, contains a repetition in precise words of the provision we have cited from the temporary act and the general term concede that in the year 1880 there was a repeal of the act of 1875, and which brought marine court executions issued to the sheriff within the control of the Code. The mistake was in the supposition that such change never took place until 1880, whereas, as we have seen, section 53 of the act of 1875, was expressly repealed in 1877, and section 3347 of the Code was only a repetition of the previous identical enactment in the temporary act of the same year. The error is quite excusable in view of the confused tangle of legislation on the subject, and more especially because, by the repealing act of 1880, chapter 479, of the Laws of 1875, with the exception of a single section, is repealed generally, without allusion to the circumstance that most of its sections had been destroyed by express enactment three years earlier. It follows necessarily that the right to issue the executions for a false return of which the sheriff is sued must be tested by the provisions of the Code.

Those provisions are quite explicit and peremptory. By section 1365 it is enacted that executions against property, “can be issued only to a county in the clerk’s office of which the judgment is docketed.” The power to issue the process is given where in some county there is the prescribed docket, and only in that event.

The language seems to involve both an authority and a prohibition; an authority where the judgment is docketed in any county to issue the execution to that county; and a prohibition, couched in the word “only” against any such issue to a county in whose clerk’s office there is no such docket. The further provisions which regulate the form and dictate the contents of the execution are framed in harmony with this prohibition and on the assumption that it would be obeyed. Section 1367 directs that “where an execution is issued out of a court, other than that in which the judgment was rendered, upon filing a transcript of the judgment rendered in the latter court, it must also specify the clerk with whom the transcript is filed and the time of filing, and it must be made returnable to that clerk;” and section 1369 enacts that “an execution against property must, if the judgment-roll is not filed in the clerk’s office of the county to which it is issued, specify the time when the judgment was docketed in that county.” The execution issued to the sheriff in this case violated all these essential provisions, and fell within the definition of void process given in Fischer v. Langbein (103 N. Y., 84; 2 N. Y. State Rep., 768), which was “such as the court has no power to award, or has not acquired jurisdiction to issue in the particular case, or which does not in some material respect comply in form with the legal requisites of such process.” The court had no power to award the execution which was issued; it acquired no jurisdiction to issue it in the particular case; and the process did not comply in form with the material requisites prescribed for it. We think it was absolutely void and that we should so declare it in obedience to the direct and peremptory mandate of the Code.

The contrary opinion is sought to be supported by the authority of two cases (Stoutenburgh v. Vandenburgh, 7 How., 229, and Blivin v. Bleakley, 23 id., 124). The first was a Special Term decision, and held, with manifest doubt and hesitation, that the execution without a docketed judgment in the county office, might be deemed regular for the purpose of a levy on personal property, at least from the time of the actual docket. The other case goes further. In that the execution was issued on the 4th of October and the judgment docketed on the 5th. The process was held to have been premature, and voidable rather than void, and good, therefore, from its date unless set aside by the court. Without either approval or disapproval of that case, the one at bar is easily distinguished. Here the judgment never was docketed during the life of the process and not until long after its vitality was spent. When the docket was made there was no execution in existence that could be "made good by any mode of amendment, and an effort to amend would" be to create a cause of action where none before existed. But there is a further fact to be considered. The cases cited were under the provisions .of the old Code, section 287 of which provided that “when the execution is against the property of the judgment-debtor, it may be issued to the sheriff of any county where the judgment is docketed.” This language, which was permissive, and possibly m’ght be deemed only directory, has been changed to peremptory and mandatory words ‘1 can be issued only.

We must recognize and give effect to the manifest purpose of the altered language. A somewhat similar change took place respecting executions against the person. Section 288 of the Old Code provided “an execution against the person—may be issued—after the return of an execution against his property unsatisfied.” Under this provision a body execution issued before the return of a property execution was ruled to be merely voidable. But the Code of Civil Procedure used different language and enacted thus “an execution against his person cannot be issued until an execution against his property has been returned”, and under this provision it was held that the execution was void unless preceded by the requisite execution against property. Bergmann v. Noble, 10 N. Y. State Rep., 27. I observe that the respondent does not question the soundness of this decision but puts it upon the peremptory language of the statute as changed in its final form. But I do not think there is any material difference between the language that an execution" cannot issue” except, and that it"ccm issue only” when: the prohibition founded upon the absence of the required condition precedent is equally strong in each case.

Deeming the execution to have been void and a nullity it follows that no action can be maintained for its false return. The doctrine brought to our attention that the officer who receives the process and treating it as valid proceeds to execute it cannot allege its defective character has its proper application to cases where the defect is capable of amendment or may be waived, and the process is merely irregular and cannot apply where it is wholly void. Here there was no process; the paper so issued and entitled was a nullity; and can not serve as the basis of an action. For these reasons we agree with the special term. As the defect is vital and fatal to any recovery no permission to amend is asked or of any utility.

The judgment of the general term should be reversed and that of the special term affirmed, with costs..

All concur.  