
    BERGMAN v. NOBLE.
    
      N. Y. Supreme Court, First Department, General Term ;
    
      June, 1887.
    1. Execution against person, when void.] ' An execution against the person of a judgment debtor who is a resident of the State, and who is not in confinement as specified in Code Civ. Pro. § 1489, issued without the prior issuing of an execution against the judgment debtor’s property to the county of his residence and the return of the same wholly or partly unsatisfied, is void.
    2. Evidence of damages in false imprisonment.] Where, in an action for false imprisonment, plaintiff, is permitted to prove circumstances which may aggravate the damages, it is error to refuse to allow defendant to give evidence tending to disprove the existence of such circumstances.
    Appeal by defendants from a judgment entered upon the verdict of a jury for $1000 damages for false imprisonment.
    The facts appear fully in the opinion of the general term.
    
      Geo. W. Stephens, for defendants, appellants.
    I. Unless execution was absolutely void, no action could be maintained. If it was merely voidable it furnished ample protection to all concerned in its issuance or execution until set aside (Chapman v. Dyett, 11 Wend. 31; Day v. Bach, 87 N. Y. 56 ; Marks v. Townsend, 97 N. Y. 590).
    II. The failure to issue an execution against property to New York county was at the most a mere irregularity rendering the execution against the person voidable, and not void (Reynolds v. Corp, 3 Cai. 267; Reynolds v. Church, 3 Id. 274; Scott v. Shaw, 13 Johns. 378 ; Smith v. Knapp, 30 N. Y. 581; Marks v. Townsend, supra; Fischer v. Langbein, 103 N. Y. 84).
    III. The execution against tile person was neither void nor voidable. By the express terms of section 3347, subd. 10, the section of the code (§ 1489), requiring the prior issuing of an execution against the property to the county in which the judgment debtor resides, being in title 3 of chapter 13, does not apply to a judgment recovered in a justice’s court. Section 3043 only provides that the execution issued upon a docketed justice judgment should be the satnein form and executed in the same manner as an execution issued upon a judgment of the county court.
    IV. The court erred in excluding evidence of defendants that the judgment upon which the execution was issued had been recovered after a trial. Plaintiff had been permitted to testify, against defendant’s objection, that he knew nothing of the recovery of the judgment. The evidence offered by defendant which was excluded would have controverted, inferentially at least, the evidence on this point of plaintiff.
    
      Theodore Connoly (Connoly, Lewinson & Mack, attorneys), for defendants, respondents.
    I. The execution upon which the plaintiff was arrested was absolutely void. The right to arrest a judgment debtor is created by statute which must be strictly followed (People ex rel. Brack v. Reilly, 58 How. Pr. 218, approved as to requisites of execution against the body in O’Shea v. Kohn, 38 Hun, 149, 151. See Mr. Throop’s notes to sections 1372 and 1489 of Code). The decision of Scott v. Shaw, 13 Johns. 378, to the effect that the want of a prior execution against the property is merely an irregularity, was decided under the prior law (Laws 1813, c. 50, § 7).
   Van Brunt, P. J.

The principal question presented upon this appeal is, was the execution under which the plaintiff was arrested a void, or simply a voidable process ? If the execution was void it afforded no protection to a party acting under it, and it was not necessary to set it aside before bringing action; but if the writ was irregular only and not absolutely void, no action lies until it has been set aside ; but when set aside it ceases to be a protection for acts done under it while in force (Day v. Bach, 87 N. Y. 56).

The facts out of which the above question arose seem to be about as follows : On September 2,1885, the appellants, as the attorneys for their co-defendants, entered a judgment in a justice’s court in Queens county against the plaintiff, for §112.50 damages, for injuries to personal property. At that time and ever thereafter, the judgment debtor (plaintiff herein) was a resident of the county of New York. The judgment was docketed in the office of the clerk of Queens county, and an execution against the judgment debtor’s property was thereupon issued to the sheriff of Queens county, which was returned unsatisfied. The judgment was never docketed in the office of the clerk of New York county. No execution against the property of the judgment debtor (plaintiff lieiein) has ever been issued to, or returned from the county of New York.

On January 16, 1886, the appellants issued an execution against the person of the plaintiff to the sheriff of Queens county, notwithstanding the fact that no execution against his property has ever been issued to the county of New York, the county in which he resided and resides. Under such execution, the plaintiff was arrested by the sheriff of Queens county on March 9, 1886. He was taken from his business in Ravonswood by a deputy, in whose company he was marched to Long Island City, where he was detained upward of three hours, and then secured his liberty by depositing with the sheriff the sum of §130, as indemnity to the sheriff for permitting his escape. Thereupon plaintiff brought this action, which resulted in a verdict for §1000 damages.

The provisions of the Code regulating the issuance of executions against the person seem to be sections 1372 and 1489 ; which sections are as follows:

§ 1372. An execution against the person must substantially require the sheriff to arrest the judgment debtor, and commit him to the jail of the county, until he pays the judgment, oris discharged according to law. Except where it may be issued without the previous issuing and return of an execution against property, it must recite the issuing and return of such an execution, specifying the county to which it was issued.”

§ 1489. “ Unless the judgment debtor is actually confined, without having been admitted to the liberties of the jail, by virtue of an execution against his person, issued in another action, or of an order of arrest or a surrender by his bail, in the same action, an execution against his person cannot be issued until an execution against his property has been returned, wholly or partly unsatisfied. If he is a resident of the State, the execution against his property must have been issued to the county where he resides.”

The provisions of section 1489 seem to be explicit as to the form of procedure which must be adopted before the extreme remedy of imprisonment can be resorted to. All the possibilities of collecting the judgment of the property of the judgment debtor must be exhausted" before resort can be had to this extreme action ; but in order that parties should in a proper case be in no danger because they have recourse to this extreme remedy, the Code has distinctly provided what shall be evidence of the fact that the remedy against the judgment debtor’s property has been exhausted: viz., the issuance and return of an execution against the judgment debtor’s property to the county where he resides The provision in section 1372 as to the form of an execution, only serves to accentuate this view, as it is provided that the execution against the person must recite the issuing and return of an execution against the property, specifying the county to which it was issued.

We have, therefore, the explicit direction of the Code as to what is a condition precedent to the right to issue an execution against the person, and where such condition precedent does not exist, there is no jurisdiction to issue the process, and it is consequently void.

In the case of Fischer v. Langbein (103 N. Y. 84), the distinction between void and voidable process is considered, and the distinction is thus stated : “ Yoid process is 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 witli the legal requintes of such process, or which loses its vitality in consequence of non-compliance with a condition subsequent, obedience to which is rendered essential. Irregular process is such as a court has general jurisdiction to issue, but which is unauthorized in the particular case by reason of the existence or non-existence of some fact or circumstance rendering it improper in such a case. In all cases where a ■court has acquired jurisdiction in an action or proceeding, its order made or judgment rendered therein, is valid and •enforceable and affords protection to all persons acting under it, although it may be afterwards set aside or reversed as .erroneous (Simpson v. Hornbeck, 3 Lans. 53). Errors committed by a court upon the hearing of an action or proceeding wdiich it is authorized to hear, but not affecting any juris.dictional fact, do not invalidate its orders or authorize a party to treat them as void, but can be taken advantage of only by .appeal or motion in the original action......The rule to be deduced from these authorities seems to be that when .a court is called upon to adjudicate upon doubtful questions .of law or determine as to inferences to be drawn from cir■cumstances, reasonably susceptible of different interpretations or meanings, and calling for the exercise of the judicial -.function in their determination, its decision thereon does not render an order or process based upon it, although afterward vacated or set aside as erroneous, void, or subject the party procuring it to an action for damages thereby inflict•ed. Where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the premises, and if it, nevertheless, proceeds and entertains jurisdiction of the proceeding, all of its acts are void and afford no justiii cation to the parties instituting them as against parties injuriously affected thereby.”

“ But if the facts presented to the court call upon it for the exercise of judgment and reason upon evidence which might in its consideration affect different minds differently, a judicial question is presented which, however decided, does not render either party or the court making it, liable for the consequence of its action.”

Applying the above principles to the case at bar, jurisdiction to issue execution against the person depending upon the fact that a proper execution against the property shall have first been issued, and there being an entire absence of proof of this fact, the execution issued against the person was void and afforded no justification to the parties issuing the same as against a party injuriously affected thereby.

It is true that in the case of Marks v. Townsend (97 N. Y. 590), Justice Eabl in his opinion would seem to indicate that this omission was a mere irregularity before the Code, but under the stringent and well defined rules regulating the issuance of process of this character, the ommission complained of in the case at bar amounts to much more than an irregularity.

. The claim that section 1489 of the Code above referred to has no application to the execution issued mentioned in the case at bar, because such action does not apply to a judgment recovered in a justice’s court, might be well founded if the execution under which the plaintiff was arrested had been issued out of a justice’s court; but that execution was issued out of the county court upon a judgment of the county court, and the rules applicable to the issuance of such an execution must determine the validity of the process.

We say that the execution was issued upon a judgment of the county court because, although the judgment was originally recovered in a justice’s court by the filing of the transcripts in the office of the clerk of the county, it became a judgment of the county court and must be enforced accordingly (Code Civ. Pro. § 3017). If the judgment is to ■ be deemed, because of the filing of the transcripts, a judgment of the county court, and is to be enforced accordingly, it became subject to all the rules applicable to the enforcement of judgments in county courts.

There, however, seems to be an error in the admission of evidence which is fatal.

The plaintiff was asked, Before your arrest, did you know of this judgment against you ? ” This question was objected to, but the objection, was overruled and the witness answered, “ No, sir; I did not know there was a judgment against me.”

This evidence was offered undoubtedly to aggravate the damage alleged to have been suffered by the plaintiff because of his arrest. It certainly has that tendency. The inference which would naturally be drawn from that answer was that the plaintiff had received no notice whatever .of the claim made which resulted in the judgment, and that he had been arrested having no reason to suspect that any proceedings were pending against him.

To meet this evidence and to rebut the inferences necessarily arising therefrom, the defendants offered to show that the judgment had been obtained after a trial ; which evidence was excluded and exceptions taken.

This was error. Proof of this kind would have completely met much that necessarily suggested itself from the evidence of the plaintiff that he did not know that there was a judgment against him. In fact it might with force be urged that this evidence would have directly contradicted the testimony of the plaintiff as to his ignorance of the existence of the judgment.

We think, especially in view of the magnitude of the verdict, that this evidence was not only calculated to but did harm the defendants, in exciting a prejudice which should and probably would not have existed had the evidence that, although the judgment may have been actually entered without the plaintiff’s knowledge, he knew of the suit and of the trial thereof, been laid before the jury.

For this error we think that the judgment must be reversed and a new trial ordered, with costs to appellants to abide event.

Daniels and Bartlett, JJ., concurred.  