Opinion
Submitted January 20, 1881
Decided February 1, 1881
Abbott Brothers for appellant.
John E. Burrill for respondent.
Prior to the 1st day of March, 1867, the Marine Bank of Chicago, by Jernegan, Smith Baldwin, its attorneys, commenced an action, in the Supreme Court of this State, against Tunis Van Brunt, upon certain promises in writing made by him, and on that day recovered judgment for the sum of $6,858.12, and the same was duly docketed in the office of the clerk of the city and county of New York. Van Brunt died, and pending a contest relative to the proof of his will, special letters of administration were issued to Mr. Schell, the respondent herein. The Marine Bank was a foreign corporation, and on the 20th day of January, 1869, one Hammond commenced an action against it as such in the Supreme Court of this State for the recovery of money. The summons and complaint therein were served by publication, and a warrant of attachment issued against its property to the sheriff of New York city and county. A return was made by him showing the execution of the attachment upon the judgment above described, "by leaving a certified copy of the said warrant of attachment with J.L. Jernegan, the individual holding such judgment as plaintiff's attorney, with a notice showing the property levied upon." Judgment by default was subsequently entered, execution issued, and an order obtained directing the sale of the judgment recovered by the Marine Bank against Van Brunt. Upon the sale made in pursuance of this order, Hammond became the purchaser of the judgment, and through several mesne assignments the title passed, as it is claimed, to the above-named Flandrow. The special administrator refused to pay it, and thereupon Flandrow presented a petition to the surrogate of the city and county of New York, whereby he asked for an order or decree of payment. It was opposed by Mr. Schell and relief denied by the surrogate, upon the ground the attachment was not properly served, and, therefore, no title to the judgment was acquired by the petitioner. The order of the surrogate was affirmed by the General Term of the Supreme Court, and although upon this appeal the respondent relies upon several grounds for its support, it is only necessary to consider the one above referred to, viz.: that no legal service of the attachment was made.
It was provided by section 235 of the Code of Procedure, then in force, that "the execution of the attachment upon * * * any debts, or other property incapable of manual delivery to the sheriff, shall be made by leaving a certified copy of the warrant of attachment * * * * with the debtor, or individual holding such property * * * *." It, of course, cannot be doubted that a judgment is, within the meaning of the Code, property subject to attachment, and of the kind incapable of manual delivery. It is an award of the court that the plaintiff recover a sum of money; and thereby a legal obligation arises on the part of the defendant to pay it. But although it is said to be a contract or debt, or obligation of record, it cannot be said to be held or to be in the possession of any one. The clerk, as an officer of the court, keeps the record, but does not "hold" the judgment. Nor does the attorney by whom it was procured. His powers are only such as are prescribed by law. They are limited to a representation of the plaintiff in the action, the management of the controversy therein; to the collection of the judgment when recovered, by such means as the law provides, and its discharge or satisfaction, if paid within two years from its recovery. He can neither assign nor sell nor deliver it. He uses the process of the court for the enforcement of the judgment, and if found in his hands, its proceeds might be seized by attachment. But the judgment is intangible. As the attorney has not possession of it, neither has he, in any general sense, "authority over" it. His power is official, its exercise limited to those acts which by means of legal process lead to its enforcement, or to the receipt of payment within a time limited by statute. His retainer is evidence that he may exercise the powers so given, but they cannot be extended or enlarged without his client's consent. And what he cannot himself do cannot be done through him by his client's creditor.
From these considerations and from the very nature of the obligation it follows, that the only way to subject a judgment to attachment for the payment of a debt of the plaintiff therein is to serve the warrant upon the debtor, the person against whom the judgment was recovered; and as that was not done, the petitioner acquired no title to the judgment, and the order denying his petition was properly made. It should be affirmed with costs.
All concur.
Order affirmed.