Page images

Hulsaver agt. Wiles.

named in the order, before him, and it is therefore claimed that the officer did not obtain jurisdiction.

This argument comes with an ill grace from the party who obtained the order, and acted under it until defeated in his purpose, but who now, to avoid the expense of the proceedings, insists that it was all a farce or trick: still the court must look to its powers and regard the law.

But I have arrived at the conclusion that the order appointing the referee was authorized by $ 300. That section empowers the judge, in his discretion, to order a reference to a referee, to report the evidence or the facts. It does not state when he shall make the order; but I have not heard any well grounded suggestion against the convenient practice of appointing the referee in the first instance. There is certainly nothing in the Code to prohibit such practice. If the referee is exceptionable, or if the order is granted improvidently, the party may apply at once to the officer to modify or vacate the order.

The case of Hatch agt. Weyburn, (8 How. Prac. Rep. 163) 'is relied on by the appellant's counsel; but that case has not been generally followed, and was expressly repudiated in Green agt. Bullard. (8 How. Prac. Rep. 313.)

The learned judge, in the former case, laid great stress on the fact, that by the amendment of 1851, the words, “or a referee appointed by the judge of the court,” were omitted in § 292. Those words were doubtless omitted for the reason that § 300 rendered them quite unnecessary.

In the next place, it is urged that the order on which the process issued was void, because it allowed $30 for counsel fee.

Section 301 authorizes the officer to allow to any party 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. He allowed a fixed sum, as expressed in the order, for counsel fee,” instead of saying “as costs." In cominon parlance, costs include counsel fee. Those terms, as used, are often synonymous. The section plainly contemplates an allowance for the expenses of the party examined, besides bis disbursements; and what can it be for, unless to

Hulsaver agt. Wiles.

cover his necessary expenses in the protection of his lega! rights. He is entitled to have the advice of counsel. (Corning agt. Tooker, (5 How. Prac. Rep. 16.) The additional allowance, I apprehend, must be intended to embrace counsel fee. In granting allowances under $ 308, the court generally take into consideration what would be a reasonable counsel fee under the circumstances of the case. (Sheldon agt. Allerton, 2 Sand. 630.)

There is a wide difference between the meaning of $ 301, and the section of the Revised Statutes which provides for the payment of costs in summary proceedings to recover the possession of lands. Costs in those cases are deemed to embrace officers' fees only, but $ 301 provides for an allowance for “ witnesses' fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs.” The allowance, it will be seen, is not limited to costs as heretofore understood, but a sum by way of indemnity to a party for his expenses in the action or proceeding, is contemplated. Those allowances are now termed costs. (Code, 9 303.) When an order speaks the clear intent of the law, in regard to the matter to which it relates, it should not be held void, because the precise language of the ' statute is not employed.

It is objected, that the order on which the process issued was granted at chambers, and hence void.

Proceedings supplementary to execution are special in their character, and the theory of them is to afford the creditor a speedy and efficient remedy against a dishonest debtor. Those proceedings are intended to furnish a system of peculiar relief, and they are to be controlled by the officer before whom they are instituted. If the examination is had before the officer issuing the order, he proceeds to dispose of the case at the close of the examination. If a reference is made, an examination is had before the referee, who reports to the officer the evidence or the facts. Still, the proceedings are before the officer, and he takes the case from the referee's report, the same as if he had himself, by an examination, obtained the evidence or determined the facts. His next duty is to grant the appropriate order on the facts before him. There is no statute which reVOL. XI.


Hnlsaver agt. Wiles.

quires any notice of any motion before himn for the order, from one party or the other; but good practice suggests the propriety of a notice of the motion from the moving party. (Todd agt. Crooke, 4 Sand. 694.) And the officer will generally require, (as he did in this case,) that the notice be served. But the system undoubtedly contemplates the granting of the order at chambers: hence, in my judgment, the order in this case was duly granted.

The appellant asserts that there is no authority to issue a process in the nature of a fieri facius, to collect an allowance as costs under $ 301, and insists that obedience to orders in proceedings supplementary to execution can be enforced only under 9 302, which authorizes the officer to punish as fora contempt any disobedience of his order. Section 302 evidently confers on the officer ample power 10 compel obedience to his orders; and the last clause of the section clothes him with authority to deal justly with a party in case of inability to perform the act required, or to endure punishment.

The process in this case was issued under § 3 of chap. 390, (Session Laws of 1847,) which provides, that “Process in the nature of a fieri facias against personal property, may be issued for the collection of " costs founded on an order of court. The costs here alluded to are those mentioned in the section of chap. 390, preceding that above quoted. That șection reads thus—“No person shall be imprisoned for the non-payment of interlocutory costs, or for contempt of court in not paying costs, except attorneys, solicitors,” &c. Thus it will be seen that the process may issue for the collection of interlocutory costs, and for costs, the non-payment of which would be deemed a contempt of court. But such process must be founded on an order of court. (See § 3, chap. 390, Sess. Laws, 1847.)

This process took the place of the precept authorized to be issued by § 15 of chap. 386, Sess. Laws, 1840, which permitted the issuing of a precept for the collection of costs awarded on special motions. (Mitchell agt. Westervelt, 6 How. Prac. Rep. 265.) These statutes of 1840 and 1847 are still in force. (Mitchell agt. Westervelt, supra, affirmed on appeal; Lucas agt.

Hulsaver agt. Wiles.

Johnson, 6 Howard Prac. Rep. 121; Thomas agt. Clark, 5 id. 375.)

The question, then, is, can the order, directing the payment of the $30 granted by the officer before whom the proceedings supplementary to execution were conducted, be deemed an order of court?

It was supposed by Mr. Justice SANDFORD, that such proceedings must be regarded as proceedings in the cause in which the judgment was rendered. (Ross agt. Clussman, 3 Sand. 676.) Still they are, to a certain extent, original in their character, as other persons than those, named in the judgment-roll may be, and often are, introduced therein as parties. (Davis agt. Turner, 4 How. Pr. R. 190.)

But this does not divest them of their special character, and they are deemed to fall under the denomination of special proceedings. (See case last cited.) They are allowed to be conducted by certain officers, and with the orders made in their progress the court has nothing to do, except to correct them, on' motion pursuant to $ 324, or review them on appeal. A distinction is clearly recognized between orders made by the court, and by a judge or officer out of court.

It was said by Mr. Justice Mason, in the matter of Smithurst, (2 Sand. 724, 726,) in speaking of orders granted in a proceeding supplementary to the execution, that “the court, as such, can not punish, because no contempt is shown to its authority, and no power is given to it to punish for contempt of the orders of the judge.”

These remarks proceed on the assumption that such orders are not deemed to be orders of the court.

The process must have its foundation on an order of court. (Sec. 3, chap. 390, Sess. Laws, 1847.)

In Lucas agt. Johnson, (6 How. Prac. R. 121, 123,) Mr. Justice Welles observes, " The order of the court is made the foundation of the execution or process in the nature of a fieri facias."

I am, therefore, led to the conclusion, that the order on which the process under consideration issued was not an order of the

Stow agt. Hamlin and others, &c.

court, and hence that the process is unauthorized by law. Perhaps an order might be obtained from the court at special term, as was done in Buzard agt. Gross, (4 How. Prac. R. 23,) which would authorize the issuing of a process; but as to that I am not called on here to express any opinion.

The order appealed from must be reversed, but without costs and the process must be set aside.


WILLIAM S. Stow agt. HUBBARD Hamlin and others, over

seers of the poor, &c.

Where there is no express agreement as to compensation, an attorney, in order

to recover against his client, must now prove generally what services he has

rendered, and what they are reasonably worth. Implied agreements between attorney and client, stand upon the same footing

with the like agreements between other parties. In the absence of any express agreement, evidence that an attorney has been

employed by his client, on an appeal, without showing any value or further services, does not entitle him to any compensation.

Seventh Judicial District, Sept. 1855.
Selden, Johnson, and T. R. Strong, Justices.
APPEAL from judgment of county court of Wayne county.

The action was commenced in a justice's court to recover the value of services rendered by the plaintiff for the defendants as attorney. The plaintiff, as attorney, had tried several suits for the defendants in justices' courts, which services had all been settled and paid for at the price stipulated, except $5 for one suit. Several of these judgments had been appealed from to the county court, and the plaintiff proved, on the trial before the justice, that he was employed to take charge of the appeals in that court; but did not prove that his services were of any value, or that he had rendered any services under such employment. The suits were settled by the parties after the appeals.

« PreviousContinue »