Opinion
Submitted January, 1870
Decided March 19th, 1870
John C. Hulbert, for the appellants.
Charles S. Lester, for the respondents.
The question involved in these appeals is one of practice merely in the court below. The judgments were for the recovery of money against the defendants, Joel and Tallcott Morehouse, and the amount recovered was also adjudged to be a lien and charge upon certain real estate devised to them by their father, and particularly described in the judgments, which was directed to be sold by the sheriff of Saratoga county, for the satisfaction of the debts. The executions issued thereon were, as stated in the motion papers, "in the usual form of executions or fi. fa's, issued upon judgments for money," and it was claimed by the appellants that they were not appropriate to the enforcement of these judgments, and on that ground, and on some allegations as to the course of proceedings thereon, an application was made at Special Term to set them aside, which was denied, and the appeal to this court is from an order of affirmance by the General Term.
The respondent was entitled to the collection of the money recovered by him, and if the executions issued were not in the form prescribed by law, it was an irregularity, subject to correction by the court below; and it is settled by the decision in the case of Bank of Genesee v. Spencer ( 18 N.Y. Rep., 150), that the order of the character appealed from does not affect a substantial right, within the third subdivision of section 11 of the Code. It related to the form and order of proceedings, and was the exercise of the jurisdiction of that court to control and regulate its process.
Orders in such cases are not appealable to this court.
If, however, an appeal was allowed, I concur in the views expressed in the opinion of BOCKES, J., at Special Term, on the merits. He has fully and ably considered the question raised by the motions, and I cannot add anything material or useful to what he has there stated.
My conclusion is, that the appeals should be dismissed, or, if retained, the order should be affirmed, with costs in each case.
The motion of the appellants was heard and decided below upon the question, whether such executions as were issued were authorized by the judgment which had been rendered. Much has been said, on the part of the appellants, upon the contents of the complaint, and the report of the referee, as not warranting an execution, as in the case of an ordinary personal judgment; but I think they have nothing to do with the motion. There has been no appeal from the judgments; there is no motion to change them in substance or form; and they are in full force. And the true, and only question, is whether, upon such judgment executions like those in question could regularly issue. The first paragraphs of the judgments are as follows: In the case of Bennett: "It is ordered and adjudged that Daniel Bennett, the plaintiff, recover of the defendants, Joel B. Morehouse and Talcott B. Morehouse, the sum of $376.16, with $203.74 costs, and disbursements, amounting in the whole to $580.40." And the two other judgments were in the same form, except names of the plaintiffs and amount. This, in each case, is a full and complete personal judgment, in form, and warrants the issuing of execution in the usual form, unless it is limited or restricted by some other part of the judgment. In this case I do not find a word which prevents or controls the issuing of such execution. The next paragraph further adjudges the judgments to be a lien on certain real estate, and directs their priority as such; and the third paragraph directs how the real estate may be sold, and provides for the application of the proceeds.
But I think it perfectly apparent that it was intended, not only to establish the lien, but also to make the judgment personal against the defendants, and to declare it payable by them, independently of whether the property on which the lien was declared, if sold, left a deficiency or not, and whether it was ever sold or not. In other words, that the judgment authorized the plaintiffs, if they chose, to first exhaust their remedy at law, without regard to the lien, and to allow them to resort to that, in case the personal remedy should not enable them to collect their whole debt.
The order of the General Term, affirming the order of the Special Term, should be affirmed with costs.
All concur for affirmance, except SMITH, J., who was for reversal.
Order affirmed.