The People v. Hulbert. May, 1850, the attorney of Humphrey and Thompson, "issued to the sheriff of Cayuga county an execution" upon the said judgment, which was delivered to the said sheriff on "the 28th day of said month of May;" that the defendant in the judgment was then a resident of said county; that the sheriff called upon him, and exhibited the execution; and that "the defendant informed the said sheriff in substance, that he had nothing upon which he could levy the execution." It is objected, on the part of the relator, that enough does not appear, upon the face of the affidavit, to give the county judge jurisdiction to issue the order. No authority is given to the party to apply for this order, or to the judge to issue it, until after an execution has been issued against the property of the defendant. Three kinds of executions are prescribed by the code. The affidavit presented to the judge does not show what kind of an execution was issued upon this judgment. If we were at liberty to indulge in presumptions on such a case, it might perhaps be inferred from what took place between the sheriff and the defendant in the execution, when the latter was called upon, and the execution exhibited, that it was an execution against his property. But this will not do where the jurisdiction of an inferior officer, to act in the first instance, is drawn in question. In all such cases, the facts upon which jurisdiction rests, must be shown affirmatively, and are not to be deduced by inference or presumption. Nothing is to be presumed in favor of the jurisdiction of inferior officers and tribunals. The affidavits here do not even disclose the nature of the claim on which the judgment was founded. But, if they did, we would not even presume that the party issued the proper execution. The fact is to be established by a direct and affirmative allegation, in order to give jurisdiction to the inferior officer. I think it is clear, therefore, that the county judge, in this instance, acquired no jurisdiction to issue the order, and proceed to the examination upon these affidavits. The claim which the judgment creditors sought to have applied in satisfaction of their judgment, was one which they alleged, existed in favor of the relator against two firms in Auburn, for services rendered by him in their employ, and The People v Hulbert. which they claimed Mrs. Watson, a daughter of the relator, had been liable to pay to him. They sought to charge Mrs. Watson with the demand and not the firms, and to obtain satisfaction from her. Both she and the relator denied the existence of any such demand or liability against her. The judge proceeded, nevertheless, to try this disputed question of fact, and examined the relator, Mrs. Watson, and other witnesses, and various documents and papers, as to the nature and origin of the claim and its alleged payment, and thereupon, as appears from his order, adjudged that Mrs. Watson was the debtor of the relator, and that the amount of such indebtedness remaining unpaid should be applied in satisfaction of the judgment. All this part of the proceeding was wholly unauthorized and void. The judge had no right whatever to try this disputed claim in this way, or to make any determination of any kind in regard to it. By § 299 of the code, if the person alleged to be indebted to the judgment debtor denies the debt, the judge is authorized by order to forbid a transfer, or other disposition of it, till a sufficient opportunity be given to the receiver to commence the action, and prosecute the same to judgment and execution. This section expressly provides, that such interest or debt shall be recoverable only in an action by the receiver. If the application of property, which the judge is authorized to order by § 297, was intended to extend to debts due the judgment debtor, it must be construed to mean only debts or demands about which there is no dispute, as § 299 prescribes the only mode in which disputed claims are to be collected. It is contended, on the part of the relator, that the judge had no authority to appoint a receiver in any case until after the return of an execution; that, by § 298, the judge is to appoint "in the same manner as if the appointment were made by the court according to § 244, and by § 244 the court could only appoint receivers according to the then existing practice,which required an execution to be returned in cases of this kind before a creditor's bill could be filed. (See amendment of this section.) This is a proceeding under the last clause of § 292, where the judgment debtor, after execution issued against his property, refuses to apply property which he has in satisfaction of the judgment. The People v. Hulbert. In such a case, I think the design was to authorize the appointment of a receiver, without any reference to the return of the execution. This, I think, will be rendered apparent by reference to $297, 298, 299. The appointment "in the same manner" only relates to the mode or form of the appointment. The case or circumstances which authorize it are found in § 292. The judge also ordered the relator to make an assignment to the receiver appointed by him; and it is objected, that the code gives authority neither to a court nor to a judge to order an assignment. The code, it will be seen, makes no provision for an assignment, and, consequently, the judge had no authority to order it. An assignment, however, in a proceeding of this kind, is probably unnecessary in order to vest the necessary title in the receiver to enable him to prosecute demands, and collect moneys due. I apprehend that the necessary title and authority for such purposes to rights and property of this description vest in the receiver immediately upon his appointment as an incident to the office without any formal assignment. (Rule 81; Chancery Rules, 193; Edwards on Receivers, 83, 354.) In regard to real estate it is different. There an assignment under seal would be necessary to transfer the title to the receiver, though perhaps he might collect rents and profits without any assignment. Doubtless the supreme court, by virtue of its original and inherent power and authority, and especially since the accession of equity powers and jurisdiction, may order and compel an assignment without any statutory provision. Inferior officers and tribunals must, however, show a warrant in the statute for every step they take affecting the rights of parties before them, or the proceedings will be unauthorized and void. This difficulty is in no wise removed or avoided by the liberal rule of interpretation provided for by § 467. The relator's counsel insists, that, as by § 463 personal property is made to mean and include demands of this description, and by § 289, whenever an execution is issued against the property of the debtor, it is made the duty of the sheriff first to satisfy the judgment out of the personal property, the demand in question should have been levied upon and sold, and that this Thr People v. Hulbert. proceeding is entirely unnecessary. I apprehend, that § 291 still restricts the operation of executions, and the levy and sale under them to their former well understood and clearly defined limits, notwithstanding the apparent confusion created by the absurd attempt to define and explain everything "in such a manner as to enable a person of common understanding to know what is intended." It is also contended, that, as the code makes no provision as to the time and manner of serving these orders, the court cannot say whether any, and, if any, what particular mode of service is the proper one, and, consequently, cannot hold any to be good. The service of the order in this case was personal, and, I think, that must be regarded as a good service. Another objection is, that the judge adjourned the proceedings before him from time to time, and that the code gives no right or authority to adjourn. Had the judge acquired jurisdiction in this case in the first instance, I think, no advantage could have been taken here of the power exercised in adjourning, as all the adjournments appear to have been by the consent and agreement of the parties. Where no consent is given by the party against whom the proceeding is had, the judge has no more power to adjourn the proceedings than a justice of the peace would have to adjourn a cause before him without the authority of the statute. Order and proceedings set aside.* ; * See the cases of Engle v. Bonneau, 3 Code Rep. 205; Tillou v. Vere, 1 ib. 130 Barculows v. Protection Co. of N. J., 2 ib. 72; Van Wyck v. Bradley, 3 ib. 157; Bunn v. Fonda, 2 ib. 71. In a case (Stright v. Vose) before Judge Parker, at Chambers, it appeared that a judgment had been obtained in a justices' court, and a transcript of the judgment filed with the clerk of Albany county. On this judgment an execution against property had been returned unsatisfied, and thereupon the judgment creditor obtained an exparte order from Mr. Justice Parker for the judgment debtor to appear before a referee, to be examined as to his property. The judgment debtor refused to comply with the requirement of such order. On motion for an attachment to enforce obedience to the said order, W. C. McHarg opposed same, and the motion was refused. Parker, J. said, When these orders were applied for, I did not observe that these proceedings were in the county court, but supposed they were in the supreme court. I have no jurisdiction in a judgment of the county court to make an order in proceedings supplementary to the execution. Dexter v. Gardner. SAME COURT. Commission to take Testimony. BLACKMAN V. VAN INWAGEN. ON motion for a commission to take testimony, an order taken by default is not a nullity, because the motion papers do not disclose the name of the county in which the action is to be tried. If necessary to show the place of trial, it can only be to show that the motion is made in the proper county. WELLES, J. SAME COURT. Continuance of Action. VROOMAN V. JONES. THE 121st section of the code, so far as it is made applicable to suits commenced before the code took effect, is unconstitutional. Per MASON, J.* SAME COURT. Per Centage. DEXTER V. GARDNER. THE motion for an allowance is denied. I cannot assent to the decision given by Judge Barculo to the 308th section of the code. I adhere to the interpretation given in Howard v. Rome and Turin Plank Road Comp., 4 Pr. R. 416. The trial lasted only two or three hours, and there was nothing peculiar in the character of the cause, though the questions were somewhat complicated. Per GRIDLEY, J. * See Phillips v. Drake, 1 Code Rep. 63. |