
    The Niagara Grape Market Company, Respondent, v. Dennis M. Wygant, Defendant. Charles Hertzog and Benjamin Hertzog, Appellants.
    
      Attachments—priority between—effect, where a warrant is signed and is retained by a judge, through mistahe, and a copy is delivered to the sheriff— Oode of Oivil Procedure, §§ 697, 1406.
    A firm known as Hertzog Brothers procured a warrant of attachment in an action in the Superior Court of the city of New York from a judge of that court on the evening of December third. Early on the morning of December fourth the plaintiff, in an action in the Supreme Court, ap plied to a judge of that court at his house for a warrant of attachment. A servant took the papers to the judge, who signed the warrant, but by mistake retained it, his intention being to retain the bond for the purpose of filing it. At nine o’clock of the same day, the hour when it opened, the bearer of each set of papers appeared at the sheriff’s office; the sheriff marked the plaintiff’s copy of the warrant No. I, and the warrant of Hertzog Brothers No. 2, and during the same day the plaintiff procured from the judge the original warrant, which the judge had signed and retained, and caused this warrant to be delivered to the sheriff.
    
      jffeld, that the warrant of the Hertzog Brothers was entitled to priority ;
    That, although the judge of this court had actually signed the warrant when it was presented to him, yet, having retained the instrument, and, therefore, being in a position to recall it if he chose, it could not be said that the warrant had a complete existence.
    Appeal by Charles Hertzog and another from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1895, directing the sheriff of the county of New York to award preference and priority in executing a warrant of attachment issued in the above-entitled action against the defendant, over a warrant of attachment issued in an action in the Superior Court of the city of New York, wherein the appellants were plaintiffs and the said Wygant was defendant.
    
      J. George Flammer, for the appellants.
    
      John J. Townsend, for the respondent:
   Rumsey, J.:

The opposing parties upon this appeal claim under separate war-' pants of attachment against the defendant, and the appeal is taken from an order awarding to the warrant sued out by plaintiff priority-over one procured by the firm of Hertzog Brothers, who are the appellants. The facts are not in dispute. The warrant of the Hertzogs was granted by a judge on tbe evening of December third. On the morning of the fourth of December, at an early hour, the plaintiff caused an application for a warrant of attachment to be made to a justice of this court at his house. The papers were presented to the justice by a servant. The warrant was signed by the judge, and the papers were handed by the servant to the plaintiff’s messenger, who examined them, and, noticing that the original warrant was not among them, asked for it, but was told that the judge had kept it. In fact, the judge had retained it by mistake, intending to keep the original bond that he might cause it to be filed, but keeping the warrant instead. The young man went away with the papers which had been handed to him, which did not include the original warrant of attachment. At nine o’clock, the hour at which the sheriff’s office was open, the bearer of each set of papers made his appearance. The plaintiff’s attorney presented to the sheriff the papers upon which the application for his warrant had been made, with a copy of the warrant, which was marked No. 1. The warrant of the Hertzog Brothers was next received and marked No. 2. Both were received at the same time and so stamped. The original warrant in plaintiff’s action, which was then in the hands of the judge, was procured from him and handed to the sheriff during the day. There is no doubt that the warrant was actually signed by the justice, and the failure to deliver the original warrant was a mere mistake. Upon this state of facts the court directed' the sheriff to award preference and priority to the warrant of attachment issued in plaintiff’s action over the warrant issued in the action in which Hertzog Brothers are plaintiffs, and from that order this appeal is taken.

It might perhaps be sufficient to say that as no levy is shown to have been made, and it does not appear that it will be made, or that when made the property will not be sufficient to pay the amount of both warrants, the order is prematurely made. But to reverse it upon that ground would leave the same question to arise upon the distribution of the fund, and, therefore, we have concluded to examine the merits.

The iaw says that when two or more warrants of attachment against the same defendant are delivered to the sheriff of the same county to he executed, their respective preferences are the same as where two ■or more executions against the same defendant are delivered to the ■sheriff of the same county. (Code Civ. Proc. § 697.) In the case ■of two executions, that one has preference which is first delivered to the sheriff. (Code Civ. Proc. § 1406.) But the warrant delivered must be one on which the sheriff can act, because if it is incomplete or invalid for any reason so that he cannot proceed upon it and make a valid levy, the plaintiff can acquire no rights under it, and of course can have no lien by virtue of it. The sheriff could not act upon the copy of the warrant which the plaintiff delivered to him. If there had been nothing else, no one would claim that ■■any rights could be acquired under it as against an original warrant which the sheriff afterwards received to be executed. But it is said that there was an original warrant, only instead of having been ■delivered to the sheriff, it was kept by the judge who had signed it, and was not in fact delivered by him to any one. The question is then presented whether the failure to deliver the warrant was fatal to its validity. This fact, that the failure to deliver was caused by the mistake of the judge, does not affect the case. When the party claims a right in an action at law, he is bound to make it appear that the officer through whose act the right comes into ■existence, has jurisdiction to act, and if jurisdiction depends upon a valid process it must be shown to have existed. To create such a process it must have been fully completed. While the application for it is still sub judice, it has, of course, no force. Neither has it after the officer has decided the case, and concluded to grant it until he has expressed that conclusion by some act which brings the writ into existence. Especially is this so where, as in this case, there had been no service of the summons, and there was jurisdiction only by the granting of the warrant under section 416 of the Civil Code. To the completion of such an act, it is, we think necessary not only that the manual signing should have taken place, but that the warrant so signed should have been by the judge actually delivered to the party or the officer whose duty it is to execute it. So long as he still has actual control over it so that he may recall it, it cannot be said to have a compíete existence. The right of the party to have it has not been finally decided. To hold otherwise would be productive of grave inconveniences, and would make the rights of parties to depend upon mere recollection or doubtful inferences, instead of some certain and precise thing, about which there could be no question.

It is quite true that it has been held that a party to an action has been held bound to obey an injunction, although the writ had not been actually issued, if he had notice that the court had determined to grant it. (Hull v. Thomas, 3 Edw. Ch. 236.) But in such cases the court had already obtained jurisdiction of the person of the defendant, and the order was made upon a hearing and as a proceeding in the cause. (People ex rel. Platt v. Rice, 144 N. Y. 249, 260.) But here there is no jurisdiction until the warrant is granted, and it is not granted until it has been delivered by the judge with the intention that it shall become operative. The case of Burdick v. Green (18 Johns. 14) is not in point. The question presented there was whether the capias was issued so as to take the case out of the Statute of Limitations. The law required that the writ should be issued before the six years expired. It had been sued out and forwarded to the sheriff to serve. The court held that was sufficient to take the case out of the statute. The question whether jurisdiction had been acquired did not arise. It is not necessary to consider the matter further. For the reasons above stated, the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs to the appellant.

Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.  