Opinion
Argued April 24, 1877
Decided May 22, 1877
Vedder Van Dyck, for the appellant.
R.C. Elliott, for the respondent.
This was an application under the 5th article of title 1, chap. 5, part 2 of the Revised Statutes, for the purpose of exonerating the person of the petitioner from imprisonment. There are two objections not involving the merits, which we do not see any way to overcome. 1st. The application must be made to certain officers specified, and cannot be made to any court; and an order by such a person is not appealable either to the General Term or to this court. In the Brady Case ( 69 N.Y., 215), the application was under the 6th article, which authorizes it to be made to a court, and we held that it was appealable as an order in a special proceeding under the act of 1854, chap. 270. The remedy, in this case, was by certiorari. 2d. The case was out of court by the failure of the presence of a judge competent to sit.
Section 2 (art. 7) provides that applications under the 5th article must be made to an officer residing in the county in which the insolvent or imprisoned debtor resides or is imprisoned; and section 5 provides that in case of disability, resignation, removal from office, or absence from the county of the officer before whom the proceedings were commenced, the same may be continued by his successor in office, or by any other officer, who might have originally instituted such proceedings; and the sixth section provides that, if there is no such officer competent to act, then any judge of the county courts may attend, and adjourn the hearing to the next court of common pleas of the county.
The original order was made on the 20th day of July, 1876, by Justice DONOHUE, returnable on the 2d day of September, 1876. On the return day the parties appeared, but there was no justice in attendance. On the 4th day of September, which was Monday, the next court day, Justice WESTBROOK continued the proceedings until the 8th day of September, and on that day he adjourned them until the first Monday of October. Justice WESTBROOK neither resided in the county or the district. The statute is very specific in designating the officers who are authorized to act in conducting these proceedings. It must be an officer residing in the same county in which the debtor resides or is imprisoned, and this qualification every judge must have or the proceedings go to the Common Pleas, except that the successor of the officer, who made the original order, may aet. Judge WESTBROOK was not in the sense of the statute successor of Judge DONOHUE, and he lacked the qualification of residence. Objection was duly taken throughout the proceedings, and we feel constrained to hold under the positive provisions of the statutes that Justice WESTBROOK had no jurisdiction, and that the proceedings were out of court. There was no judge present on the return day, and no one competent to sit until the second day of October. The proceedings could not be revived at that time, and the subsequent proceedings were void.
The question of res adjudicata is a more serious one; but it is not necessary to consider it.
The order of General Term reversed, and appeal to that court dismissed.
All concur.
Ordered accordingly.