dissenting. — The defendant made application to a justice of the first district for a supersedeas to discharge him from custody, he having been surrendered by his bail after judgment, and the plaintiff not having charged him in execution within three months after the surrender. The application was made under 2 Revised Statutes, 556, sections 36 and 37. Section 37 authorizes the supersedeas to be allowed by any judge of the court in which such judgment shall have been obtained, unless good cause to the contrary be shown. So it is to be on motion, and on notice to the plaintiff, who m^r show cause against the discharge, even “ if the plaintiff neglects so to charge the defendant in execution.” (§ 37.)
As the supersedeas may be allowed by any judge of the court, it would be immaterial whether it were applied for *25before a judge of the district where the place of trial is laid, or a judge of any other district, if the Code do not restrict the defendant more than the Eevised Statutes did. The Code (§ 401) provides that “no motion can be made in the first district in an action triable elsewhere.” It has been held, in one instance at least, in another district, that this cuts off the jurisdiction of the court; so that an order made even by the general term of this district, staying proceedings after judgment, when the place of trial was in another county, was pronounced a nullity. The section does not curtail the powers or jurisdiction of the court, it merely restricts the rights of parties to the suit as to the place where they shall be allowed to make a motion. It is “ that no motion can be made in the first district,” &c.— not that the court in the first district shall have no jurisdiction. That court had general jurisdiction before, and it is not to be taken away except by the clear and express declaration of the legislature. The most inconvenient results would follow, if this distinction between the powers of the court and the rights of parties should be overlooked.
Motions must be made within the district in which the action is triable, or in a county adjoining that in which it is triable, except that when the action is triable in the first judicial district, the motion must tfe made therein. (§ 401). This is imperative, as “no motion can be made.” If it takes away jurisdiction of all motions, unless they are made in the proper district, then orders may be made in other districts, discharging defendants from execution — the plaintiff not objecting that they are not made in the proper county — and the sheriff may obey the order, and be liable in damages. Injunctions may be so granted on motion and disobe}red, and the culpable party be protected, and answer the court, that it had no jurisdiction, and therefore he treated its order with contempt.
Consent cannot give jurisdiction — but if the parties do not object that the motion is not made in the proper district, the order is just as valid as a judgment would be where the trial was in a wrong county, and the parties assented to the trial there, or did not raise the objection. Here the plaintiff does object, and the question must be decided, whether such a proceeding as this is included in the motions mentioned in section *26401 of the Code. Section 400 declares that every direction of a court or judge, made or entered in writing, and not included in a judgment, is an order; and section 401, that an application for an order is a motion. This defendant did apply to the judge for his direction, to be made in writing, allowing the supersedeas. That application was a motion within the express definition of section 400. Neither that section nor section 401 makes any distinction whether the motion is made before or after judgment.
Orders on summary applications after judgment are included among those that are appealable from the special to the general term, (§ 349, subd. 5), and the motions on which they are made are generally included in section 401. It is necessary to add, that the general restriction in section 401 cannot apply, when by special provision of law the place where the motion is to be made is prescribed in a particular case. For instance, under section 292, as to supplementary proceedings after execution, the judgment debtor is to be required to appear and answer before the judge, at a place within the county to which the execution issued; and that county must be the place of residence of the debtor. If therefore the debtor resides in the first district, the application for the order can be made only in that district; or if made in another district, the judge must appoint the place of hearing to be in that district. So, on proceedings under the non-imprisonment act, the debtor is to be brought before the judge of the county where he may be arrested. This must be so, even although the place of trial be in another county.
If the Revised Statutes had directed this proceeding to be heard before the judge where the defendant was in execution, the special provision would have controlled the general language of section 401 of the Code, and this would be the proper place to make the motion. It would have been clear that the legislature had an object in designating the place of hearing which was peculiar to this case, and so not to be affected by mere general expressions, although in a subsequent act.
The defendant, however, insists that as this proceeding is under Part III., Chapter 8, Title 17, of the Revised Statutes, the Code has no application to it, by section 471. That section *27is, that the second part of the Code (including § 401) shall not affect proceedings upon mandamus or prohibition, nor appeal from Surrogate Courts, &c., nor any proceedings provided for by chapter 8, of the third part of the Revised Statutes, excluding titles 2 and 12, except that when in consequence of any such proceeding a civil action shall be brought, such action shall be conducted in conformity to this act; and except also, that when any particular provision of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provision shall be deemed repealed.
There is a particular provision in the chapter of the Revised Statutes under which this proceeding is instituted, authorizing a motion for the allowance of a supersedeas, to be heard before any judge of the court, without regard to the place of trial, but that is plainly inconsistent with the Code, which forbids motions being made in the first district, when the action is triable elsewhere.
The appeal is within time, as no written notice of the order appealed from was served. (Code, § 332). It affects a substantial right; the right of the defendant to his discharge, and the right of the plaintiff to detain him in custody, to secure the payment of his debt. (Code, § 349, subd. 5). A remedy allowed by law, as a means of obtaining the payment of a debt, is a right.
The order appealed from should be reversed, without costs, and without prejudice to the defendant’s renewing his motion in the proper district.