Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

ness.

from acting in any of the proceedings whatever, herein authorized, from any cause or causes whatsoever, such justice of the supreme court shall have the same powers and authority, in all cases whatever, as are herein conferred upon him as to cases of judgments in the supreme court. On an examination under this section, either party may examine witnesses in his behalf, and the judgment debtor may be examined in the same manner as a wit

Instead of the order requiring the attendance of the judgment debtor, the judge may, upon proof by affidavit or otherwise, to his satisfaction, that there is danger of the debtor's lea the state, or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath, and if it then appears that there is danger of the debtor's leaving the state, and that he has property which he has unjustly refused to apply to such judgment, ordered to enter into an undertaking with one or more sureties, that he will from time to time attend before the judge as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any portion of his property, not exempt from execution. In default of entering into such undertaking, he may be committed to prison, by warrant of the judge as for a contempt. No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution. Nor shall he be excused from answering any question on the ground that he has, before the

examination, executed any conveyance assignment or transfer of his property for any purpose, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution.

$ 293. After the issuing of execut:on against property, any person indebted to the judgment debtor, may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, and the sheriff's receipt shall be a sufficient discharge for the amount so paid.

$ 294. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon an affidavit, that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding ten dollars, the judge may by an order require such person or corporation, or any officer or member thereof, to appear at a specified time and place, and answer concerning the same.

The judge may also, in his discretion, require notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper.

The proceedings mentioned in this section, and in section two hundred and ninety-two, may be taken upon the return of an execution unsatisfied, issued upon a judgment recovered in an action against joint debtors, in which some of the defendants have not been served with the summons by which said action was commenced, so far as relates to the joint property of such debtors; and all actions by creditors, to obtain satisfaction of judgments out of the property of joint debtors, are maintainable in the like manner and to the like

effect. These provisions shall apply to all proceedings and actions now pending, and not actually terminated by any final judgment or decree.

$ 295. Witnesses may be required to appear and testify on any proceedings under this chapter, in the same manner as upon the trial of an issue.

$ 296. The party or witness may be required to attend before the judge, or before a referee, appointed by the court or judge; if before a referee, the examination shall be taken by the referee, and certified to the judge. All examinations and answers before a judge or referee, under this chapter, shall be on oath, except that when a corporation answers, the answer shall be on the oath of an officer thereof.

§ 297. The judge may order any property of the judg. ment debtor, not exempt from execution, in the hands either of himself or any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment, except that the earnings of the debtor for his personal services, at any time within sixty days next preceding the order, cannot be so applied, when it is made to appear by the debtor's affidavit, or other wise, that such earnings are necessary for the use of a family supported wholly or partly by his labor.

$ 299. The judge may also by order appoint a receiver of the property of the judgment debtor, in the same manner and with the like authority as if the appointment was made by the court according to section 244. But before the appointment of such receiver, the judge shall ascertain, if practicable, by the oath of the

party, or otherwise, whether any other supplementary proceedings are pending against the judgment debtor, and if such proceedings are so pending, the plaintiff therein shall have notice to appear before him, and shall likewise have notice of all subsequent proceedings in relation to said receivership. No more than one receiver of the property of a judgment debtor shall be appointed. The judge may also by order, forbid a transfer or other disposition of the property of the judgment debtor not exempt from execution, and any interference therewith.

Whenever the judge shall grant an order for the appointment of a receiver of the property of the judg. ment debtor, the same shall be filed in the office of the clerk of the county where the judgment roll in the action or transcript from justice's judgment, upon which the proceedings are taken, is filed ; and the said clerk shall record the order in a book to be kept for that purpose in his office, to be called “book of orders appointing receivers of judgment debtors,” and shall note the time of the filing of said order therein. A certified copy of said order shall be delivered to the receiver named therein, and he shall be vested with the property and effects of the judgment debtor from the time of the filing and recording of the order as aforesaid. The receiver of the judgment debtor shall be subject to the direction and control of the court in which the judgment was obtained, upon which the proceedings are founded ; or if the judgment is upon a transcript from justice's court filed in county clerk's office, then he shall be subject to the direction and control of the county court.

But before he shall be vested with any real property of such judgment debtor, a certified copy of said order shall also be filed and recorded in the office of the clerk of the county in which any real estate of such judgment

L

debtor sought to be affected by such order is situaterl, and also in the office of the clerk of the county in which such judgment debtor resides.

$ 299.

appear that

If it

a person or corporation alleged to have property of the judgment debtor or indebted to him, claims an interest in the property, adverse to him, or denies the debt, such interest or debt shall be recoverable only in an action against such person or corpora. tion by the receiver ; but the judge may, by order, forbid a transfer or other disposition of such property of interest, till a sufficient opportunity be given tn the receiver to commence the action, and prosecute the same to judgment and execution ; but such order may be modified or dissolved, by the judge granting the same, at any time, on such security as he shall direct.

$ 300. The judge may in his discretion order a reference to a referee agreed upon by the parties or appoint ed by him to report the evidence or the facts, and may in his discretion, appoint such referee in the first order or at any time.

$ 301. The judge may allow to the judgment creditor, or to any party so examined, whether a party to the action or not, witnesses' fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs.

$ 302. 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.

And in all cases of commitment under this chapter, or the act to abolish imprisonment for debt, the

« ΠροηγούμενηΣυνέχεια »