
    UTICA CITY BANK a. BUELL.
    
      Supreme Court, Fifth District;
    
    
      At Chambers, August, 1859
    Supplementary Proceeding.—Service, and Proof of.
    It is not necessary that the affidavit, on which the order for the examination in supplementary proceedings is founded, should he served with the order.
    
    
      The sheriff’s certificate is not proof of service of an order in supplementary proceedings.
    To appear merely for the purpose of asking an adjournment, is a waiver of an objection to the proof of service.
    
      Supplementary proceedings.
    The plaintiff moved for an attachment against the defendant for an alleged contempt, in not appearing before a referee in
    
      proceedings under an order for his examination. The facts are stated in the opinion.
    
      Kiernan & Quin, for the motion.
    
      Hunt & Throop, opposed.
    
      
       Farquaharson a. Kimball (Supreme Court, Fifth District; At Chambers, 1859).— Judgment having been obtained by the plaintiff, he commenced supplementary proceedings for the examination of the judgment-debtors. The cause now came up on an order obtained by them, requiring the plaintiff to show cause why the proceedings should not be set aside. The order requiring them to appear and submit to examination was granted, on the 5th of September, upon the usual affidavits showing the rendition of judgment, the issuing of execution, and its return unsatisfied. The affidavit, on which the order to show cause was granted, set forth that an execution was issued on the judgment, on the 3d of September; that under it a levy had been made upon some property claimed to belong to the defendant Mudge, and that the execution still remains in the hands of the sheriff, unreturned, a suit being then pending to test the question of title to the property levied upon.
      
        Mr. Beach, for the defendants, took three objections to the validity of the order for the examination of defendants:
      1. That no copy of the affidavit, on which the order was granted, was served with the order.
      2. Assuming that an execution had been issued prior to the one upon which the levy was made, no proper or legal return was made by the sheriff of that execution, or, if so, the order could not be obtained until the expiration of the sixty days the execution had to run.
      3. An execution having been subsequently issued upon the judgment, and still outstanding, and in the course of enforcement in the sheriff’s hands, the plaintiff is not entitled to an order for examination under the first clause of section 292 of the Code ; the only resort of the plaintiff in such case being an application under the second clause of that section, requiring the debtor to answer as to any specific property which he unjustly refuses to apply to the satisfaction of the debt.
      Bacon, J.—I. The first objection is answered by the case of Green a. Ballard (8 How. Pr. B., 313), which holds that a copy of the affidavits, on which the order supplementary is granted, need not be served with the order.
      It is, perhaps, unfortunate that provision has not been made for such service, since it seems eminently proper that'the affidavit, which is the foundation of the order, should accompany it, and thus apprise the party of the ground of the pro- • ceeding, and enable him to avail himself speedily of any defect that may exist in the affidavit. But the Code has not provided for such service, save in the case of orders of certain kinds granted in actions, and this proceeding is not an action. This defect might, perhaps, be remedied by a general rule of the court, but, in the absence of such a rule, the objection is untenable.
      II. The second question made cannot, perhaps, fairly be urged on this proceeding. In the moving papers on the part of the defendants, nothing is shown in respect to the issuing or return of the first execution, as the application to vacate the order proceeds upon the ground of there being but one execution in the case, and that one being still in the hands of the sheriff. If this were the only fact in the case, the order must, of course, be discharged, since it can only be granted after the issuing and actual return of an execution. It beame proper then for the plaintiff to show, as he has done, that an execution was, in point of fact, issued on the 19th of August, and that, on the 22d of that month, it was returned by the officer unsatisfied, and it was upon this issuing and return that the supplemental order was obtained.
      The affidavit goes further, and states that the attorney for the plaintiff explicitly requested the deputy-sheriff, to whom this execution was delivered, to call upon the defendants with the execution, and make an effort to collect it, and that a few days afterwards, on again applying to the deputy to know if he had done so, he replied that he had not; that he had already returned executions against the same parties to the amount of thousands of dollars, and it was of no use to call upon them ; that they had nothing, and he had accordingly returned the execution unsatisfied.
      That, upon the proper return of an execution unsatisfied at any time within sixty days after its receipt by the officer, an order supplementary to execution may be obtained, is settled by a general-term decision in the sixth district, in the case of Livingston a. Cleveland (5 How. Fr. S., 396), and in the Superior Court of New York, in Engle a. Bonneau (2 Sand/., 679).
      These decisions are not dissented from by Judge Johnson, in the recent case of Spencer a. Cuyler (supra), although he doubts, and it seems to me with some reason, whether the Legislature ever intended to leave it to the sheriff to fix the return-day at any time within the life of the execution as against the parties, and by statute only in favor of the sheriff in a proceeding against him to compel a return. But this point must be deemed settled by the cases above referred to. The case of Spencer a. Cuyler, however, does decide that, where a return of the sheriff is made at the solicitation and upon the request of the plaintiff or his attorney, before the expiration of the sixty days, such a return is to be regarded as the act of the party, and not the official act of the sheriff, and supplementary proceedings founded upon such a return will be set aside. In this I entirely concur, and in this district we have had occasion not unfrequently to enforce this rule. It is not to be tolerated that a sheriff, by yielding to the solicitation, or in obedience to the appliance of a party desiring to secure an advantage over competing credit tors, may fix different return-days to several executions which may be in his hands at the same time, and thus enable one creditor to obtain a preference in .reaching the equitable assets of his debtor. Wherever there is sufficient reason to question the good faith of a return thus made before the expiration of the sixty days, and the sheriff acts manifestly upon the procurement of the party or his attorney, it should be held that the remedy by execution has not been exhausted, and the party is not entitled to the supplementary order.
      In this case there is a failure to show any such fact. On the contrary,, the attorney directed the officer to call on the defendants and make an attempt to. collect, and, although the return was made very soon after the issuing of the execution, it appears to have been in good faith, and from a persuasion on the part of the deputy sheriff, apparently well grounded from his prior experience, that the defendants really had nothing on which a levy could be made.
      III. The third ground of objection has been argued with much zeal by the defendants’ counsel, and, but for some decisions which appear to dispose of it, with a good deal of plausibility.
      It is insisted that the mode of proceeding, instituted by the Code in section 292 et scq., was intended to be a complete system in itself, and entirely to supersede the old order of things, which obtained when the same end which is now accomplished by these proceedings was attained through the aid of a creditor’s bill, and the machinery appurtenant thereto. And, therefore, that, whenever there is an execution actually in the sheriff’s hands, the party can only take the proceeding which, by the Code, is intended as auxiliary to the execution and in aid of its en7 forcement, and not one which, founded on the return of an execution, enables the party to go further, and put the defendant in the execution upon a general, thorough, and searching course of examination in respect to all his property, legal and equitable.
      Under the former system, however, it had repeatedly been held by the Chancellor, that after the filing of a creditor’s hill the complainant might issue a new execution upon his judgment, and levy upon the property of the judgment-debtor, and proceed to enforce it to any extent that it might be found available, and was not called upon to elect either to dismiss his bill or abandon his execution; cer tainly not, unless it was made clearly to appear that the property levied upon was, without dispute, the property of the debtor, and was abundantly sufficient to satisfy the debt. The two modes of seeking satisfaction were not at all inconsistent with each other, but might proceed, pari passu, until one or the other resulted in satisfaction of the debt. This rule has been followed and the same principle applied in the case of Lilliendahl a. Fellerman (11 How. Pr. R., 528), decided at a special term in New York, and by the New York Superior Court in Sale a. Lawson (4 Sandf., 718). Judge Duer, in giving the opinion of the whole court in this case, says, “ These rules of the old Court of Chancery are just as applicable to the examination of a debtor under the Code, as to the proceeding by bill, and we are all of opinion that they must still be followed.
      • In the case now before me, the property levied upon by the second execution is not only not sufficient to satisfy the debt, but a suit is actually pending against the sheriff who made the levy, to determine the question of title to the property itself.
      On the authority of these cases, I am constrained to hold that the proceeding, by which the order for examination supplementary to the return of the first execution was obtained, was not superseded by the levy under the second execution, hut that the plaintiff is entitled to proceed under it as a valid order.
      The result is, that the order to show cause is discharged, the order of the 5th of September is retained in full force, and the defendants served with that order are directed to appear before the referee, and submit to an examination, on the 27th of September, instant, at ten o’clock a. m., and abide such further order as may be made in the premises.
      No costs of this application are allowed to either party.
    
   Bacon, J.—On

the 26th day of July, 1859, an order supplementary to the return of an execution was obtained by the plaintiff, requiring the defendant to appear and be examined on the 29th of July, before a referee appointed for that purpose. This order was served on the 27th of July, and the proof of such service consisted of the certificate of the sheriff, without being verified by oath that such service had been made. On the day designated by the order, the defendant appeared before the referee in the manner hereinafter stated, and asked a postponement of the hearing until the 5th of August thereafter, which application was granted by the referee. Upon the adjourned day the defendant did not appear1, and thereupon, on the certificate of the referee, and an affidavit of the attorney for the plaintiff, stating the facts, an order was granted by me, returnable on the 9th of August, requiring the defendant to show cause why he should not be attached as for a contempt, in not obeying the order to appear and submit to an examination.

The defendant, by his counsel, now appears and submits that the order should be discharged: 1. For the reason that the affidavit on which the order was founded was not served with the order; and, 2. That no proper and legal prodf was made of the service upon the defendant of the original order to appear and be examined, and that, consequently, he was not in contempt for not appearing on the adjourned day. The first objection 1 overruled, on the authority of Green a. Ballard (8 How. Pr. P., 313), and other cases. As to the second, the Code provides (§ 302) that if any person, party, or witness disobey an order of the judge, or referee, duly served, such person, party, or witness may be punished by the judge as for a contempt. The defendant’s counsel insists that the mere certificate of the sheriff, that he served an order, affords no proof of the service of the order; that, consequently, the party was not required to appear, and cannot be punished for disobedience of the order; and on this position, to the extent that the proof of service was not duly made, I think he is right. The Code makes no provision as to the time, mode, or manner of the service of these supplementary orders, nor how the proof of such service shall be manifested, or made to appear. There seems to be only two classes of cases where the certificate of an officer is evidence of the facts stated in it, and upon which some future action can be predicated. The first is, where it is made evidence by statute; and the second, where what is technically known as process, or that which is in the nature of process, is directed to the sheriff, and he is required or directed to make a return thereto.

Under the first head, various provisions are found in the statutes and in the Code, where such certificate is expressly made evidence. Thus, in respect to a summons, the provision is, that service may be made by the sheriff' or by any other person not a party to the action, but section 138 of the Code expressly makes the certificate of the sheriff good proof of the service thereof:

In reference to orders of arrest, of attachment, and executions, they are all directed to the sheriff, and require him to execute the same according to law, and there is generally a mandate in all of them requiring a return to be made thereto, and they all come under the second- class of cases mentioned above. But if the process is silent as to a retimn, the duty of the sheriff is doubtless the same, and whenever such duty is enjoined by the process, or by the law, the return is an official act, and becomes evidence by the common law. (See 2 Cow. and Hill's Notes, 239, 40, 794 ; 1 Greenl. Ev., § 498.) The statute in relation to the duties of a sheriff requires every sheriff, or other officer to whom process shall be delivered, to execute the same according to the command thereof, and to make due return of his proceedings thereon, which return shall be signed by him. (2 Rev. Stats., 3d ed., 535, § 95.)

The plaintiff’s counsel insists, in answer to this objection, that the order issued in this case partakes so far of the nature of process, that it may, without violence to language or the law, be called and deemed process, and being such, the certificate of the sheriff is proper and sufficient proof of its service. I think it can hardly come under any definition which can be fairly applied to that term. Process is defined by Blackstone to be the means of compelling a defendant to appear in court, and although literally, perhaps, it can only be strictly characterized as the initial step in a cause, it has come to be indicated by the two terms, mesne and final, which are used to designate the two stages in the progress of a cause in which it is employed. (See Tomlin's Law Piet., word “Process.”) Process is always directed to some officer to be executed, and is, strictly, the mandate of the court to the officer, commanding him to do certain things, or perform certain services, within his official cognizance, and it is this character of it, and the injunctions it contains, which makes his return evidence. To ascertain, then, whether a return is competent evidence or not, we must look to the process itself, primarily, and to the law regulating the duty of officers thereon. “ If the process is not what is called returnable process, or, in other words, if it be process upon which the officer is not required to certify his doings, his return will not be evidence, for in that case the act is entirely wnofficial, and is entitled to no more credit than it would by the act of any private person.” (2 Cow. and Hill, 794, note d.)

In this case the order could be served by any person whoever; it is not directed to the sheriff, and contains no injunction to him to do or return any thing, nor by its terms or in its nature is any official return required to be made regarding it, nor is there any statute which requires the sheriff to make the service or return, or that makes a return, when made, evidence of the facts stated therein.

Section 419 of the Code does not meet the case, for two reasons : 1. The summons, orders, and judgments there spoken of, are such as are to be executed “ jmrsuant to this act,” that is, pursuant to the directions of the Code, and the Code is silent as to the mode of service of this supplementary order; and, 2. The injunction is only that the sheriff shall execute such orders, and shall be liable if he neglects the duty, and makes no provision in regard to the manner of serving or making proof of the service of orders, or what will be sufficient evidence of service. This course of reasoning satisfies me that the certificate of the sheriff of the service of the order was not sufficient evidence that the service had been made, and, if there had been nothing else in the case, would not have authorized the referee to make any order therein, nor the judge, on the non-appearance of the party, to have entertained an application for an attachment as for a contempt.

If, then, the defendant had not appeared at all upon this order, and no other proof of its service had been made than is shown in this case, the referee would have had no jurisdiction to make any order, and the defendant would not have been in contempt for disobeying it. In the case of a summons, the Code provides that a voluntary appearance of a defendant is equivalent to a personal service (§ 139); and any irregularity in the service of an order is waived by an appearance, and by voluntarily submitting, without objection, to an examination. (Green a. Ballard, 8 How. Pr. R., 313.) In this case it is not pretended that there was any irregularity in the service of the order, but only a defect in the proof of its service. But, by the defendant’s appearance, no proof of the service was necessary, and the referee was not called upon to act on that subject. If any such objection had been made, it could, doubtless, have been remedied on the spot. The defendant, in point of fact, did appear, but it is said it was only in a qualified manner, and in such a way as to save all his rights. Let us see if this is sufficient.

The referee states, in his report, that on the day the order was returnable, the defendant appeared only for the purpose of asking an adjournment, and saving all his rights and objections, technical and otherwise. It is further added, that the defendant appeared for that purpose and no other, and, by his counsel, asks a postponement, reserving and saving all the rights of the defendant to object to and oppose the proceedings herein, and the regularity and sufficiency thereof,” and thereupon, on the motion of defendant, the proceeding was adjourned until the 5th of August, “ the rights of the parties being reserved as above mentioned.” A party can, unquestionably, make a qualified appearance, and loses thereby no rights which he expressly reserves. The party having appeared in obedience to the order, the service had accomplished all its office, and no proof whatever was necessary on that point. The rights reserved, and which the party does not lose, are the right to oppose the proceeding and the regularity and sufficiency thereof; and when he asked an adjournment, and it was granted with that reservation, he retained all those rights, and was bound to obey the order of the referee to appear upon the adjourned day. In short, the referee acquired jurisdiction of the person and the cause, and did not and has not lost it because the proof of the service was not sufficient to authorize ulterior proceedings, had there been in fact no appearance whatever. In a case in the Superior Court of New York, it is held that one of several defendants jointly liable on a judgment cannot appear, under protest to the jurisdiction, and object that it does not appear on the face of the proceedings either that he resides or was personally served with process within the city of New York—such an appearance is equivalent to a personal service. (Mahanny a. Penman, 1 Abbotts’ Pr. R., 34.)

I am of opinion, therefore, that the defendant was bound to

appear, pursuant to the order and the direction of the referee, upon the adjourned day, and that such non-appearance was a contempt which has not been purged upon the order to show cause. An attachment must therefore issue, returnable at the next special term in this district, and an order for such attachment is accordingly granted; but as the only object sought by the plaintiff is, to procure an examination of the defendant pursuant to the original order, and it is entirely in the power of the defendant to perform that duty, the order may be discharged upon the defendant’s appearing before the referee on the 16th day of August, at 10 a. m., and at such other times as he shall direct, and submit to an examination, pursuant 'to the original order, and paying $10 for the costs and expenses of the proceedings to obtain this order.  