United States v. Harpootlian, 155.

• Decision Date: 05 March 1928
• Docket Number: No. 155.,155.
• Citation: 24 F.2d 646
• Parties: UNITED STATES v. HARPOOTLIAN et al. SAME v. DAMBOURAJIAN.
• Court: U.S. Court of Appeals — Second Circuit

24 F.2d 646 (1928)

UNITED STATES v. HARPOOTLIAN et al.

SAME v. DAMBOURAJIAN.

No. 155.

Circuit Court of Appeals, Second Circuit.

March 5, 1928.

Charles H. Tuttle, U. S. Atty., of New York City (Earle N. Bishopp, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.

John C. Von Glahn, of New York City (Adelma H. Burd, of New York City, of counsel), for defendant in error.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

On March 29, 1927, an order was entered directing the defendant in error to appear for examination supplementary to execution on April 19, 1927. The order appealed from vacates that order. Judgment was obtained against the defendant in error, in favor of the United States, on September 13, 1913. An execution thereon was issued on October 6, 1913, and returned as unsatisfied. A second execution was issued September 21, 1926, and also returned unsatisfied. The provision for such examination is found in section 916 of the United States Revised Statutes (28 USCA § 727; Comp. St. § 1540), reading:

"The party recovering a judgment in any common law cause, in any circuit or district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided * * * by the laws of the United States, in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such circuit or district court; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be in force in such state in relation to remedies upon judgments, as aforesaid, by execution or otherwise."

The rule of the District Court for the Southern District of New York, in effect November 1, 1926, provides that in common-law causes the party shall be entitled to the same rights and remedies respecting attachments against property and proceedings supplementary to execution as are or may be provided by the laws of the state of New York, and it adopts such laws. Section 779 of the Civil Practice Act of the state of New York permits an examination of a debtor, after the return of an execution, at any time within 10 years, and enumerates the contents of an affidavit which must support the order requiring the debtor under the judgment to attend and be examined concerning his property.

Section 967 of the United States Revised Statutes (28 USCA § 814; Comp. St. § 1608) provides that judgments and decrees of the District Court "shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such state cease, by law, to be liens thereon." Section 510 of the Civil Practice Act of New York provides that a lien of judgment upon the real estate of the debtor which is docketed in the county clerk's office is a charge for ten years after filing the judgment roll upon the real estate and chattels real in that county where the judgment debtor has at the time of so docketing it such property, and further it is a lien or charge on subsequently acquired property within ten years. It is provided, however, that no judgment shall be a charge upon the real property of any person unless and until designated by name in the docket of such judgment in the office of the clerk of the county where the property is located.

And section 812 of title 28 of the United States Code (28 USCA § 812; Comp. St. § 1606) provides that judgments and decrees of the "District Court of the United States * * * shall be liens on property throughout such state in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such state." It is provided that, "whenever the laws of any state require a judgment or decree of a state court to be registered, recorded, docketed, indexed, or any other thing to be done, in a particular manner," so that "a lien shall attach, this act shall be applicable therein whenever and only whenever the laws of such state shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed, or otherwise conform to the rules and requirements relating to the judgments and decrees of the courts" of the United States. 25 Stat. 357.

It was necessary for the government to issue and have returned unsatisfied an execution against the property of the defendant in error, real and personal, before an order to examine in supplementary proceedings could be granted. Importers' & Traders' Nat. Bank of N. Y. v. Cebra Quackenbush, 143 N. Y. 567, 38 N. E. 728. By section 652 of the Civil Practice Act of New York it is provided that, after a lapse of 5 years from the entry of final judgment, execution can be issued thereon only where an execution was issued thereon within 5 years after the entry of the judgment and has been returned wholly unsatisfied or unexecuted. The order vacated here, for the examination, was entered over 10 years after the return of the execution unsatisfied. The executions were issued on the judgments of October 6, 1913, and September 21, 1926, respectively. It is admitted that by virtue of the statutes, even though a judgment of the United States courts is not registered, recorded, docketed, or indexed, as is the requirement relative to judgments in the state, it is nevertheless a valid lien on real estate coextensive with the territorial jurisdiction of the District Court for the district in which the defendant lives, and it is good as against both real and personal property. Metcalf v. Watertown, 153 U. S. 671, 14 S. Ct. 947, 38 L. Ed. 861; Cooke v. Avery, 147 U. S. 375, 13 S. Ct. 340, 37 L. Ed. 209; Dartmouth Savings Bank v. Bates et al. (C. C.) 44 F. 546. Judgments of the District Court have the same effect, and no...