International Harvester Co. of America v. Brockwell

BeogdeN, J.

Can supplemental proceedings be instituted against a defendant when there has been no execution issued within'three years from the institution of such supplementary proceedings?

The statutes involved constitute certain sections of Article 30 of the Consolidated Statutes, and have particular reference to C. S. sections 711, 712 and 719. A reading of the statutes discloses that a supplemental proceeding is based upon an execution. C. S., 711 deals with the problem after the execution has been returned, and C. S., 712 prescribes the procedure before the execution is returned. C. S., 719 relates to the examination of a third party and not primarily to the defendant in the execution. The distinction between these statutes is discussed and applied by McIntosh Practice & Procedure, section 747, pp. 865, et seq. G.

S., 711, specifically requires that the supplemental proceedings against the defendant must be instituted “within three years from the time of issuing the execution.” The supplemental proceedings in the case at bar was not instituted “within three years from the time of issuing the execution.” "While a third party under C. S., 719 may be examined without reference to the three-year limitation, notwithstanding, if the defendant himself is supplemented, the proceedings must be instituted “within three years of the issuing of execution.”

The plaintiff contends that the day is saved for it by virtue of chapter 24, Public Laws of 1927, which strikes out the three-year limitation in C. S., 667 and repeals O. S., 668. However, the amending statute j aforesaid does not purport to deal with supplementary proceedings, but operates directly upon the sections referred to in the act. Moreover, there is no repealing clause, and hence the application of the act mustj be confined to the express language thereof.

Affirmed.