Obrázky stránek

wise, at a circuit court or special term, as the court may by its rules prescribe. Issues of law must be tried at a circuit court or special term, and shall unless the court otherwise direct, have preference on the calendar.

4. This section prior to the amendment of 1851, was as follows:

All issues, whether of law or fact, triable by a jury or by the court, shall be tried before a single judge. Issues of fact in the supreme court, shall be tried at the circuit courts, issues of law in the first instance at a circuit court or special term.

b. The words in italic are the amendments of 1852, the words " circuit court or special,are substituted for the word “ general," and the words “ otherwise direct, hare preference on the calendar," are substituted for the words, " order the trial to be had at a special term.'

c. “The provision allowing an issue of law to be tried before a single judge, at any time, is designed to prevent the delay which now sometimes arises from a demurrer put in for that purpose alone.” Codifiers' note, Civil Code, s. 763.

d. On the 6th of October, 1851, the supreme court in the first district, made the following rule:

e. Pursuant lo sec. 255 of the code of procedure, it is ordered that all issues of fact wherein the trial is not required by the statute to be by a jury, all issues of law, all points of law reserved by the judge at chambers, and all cases made subject to the opinion of the court, shall be first heard and tried at a special term, unless otherwise ordered in each particular case.

f. In all cases or proceedings in law or equity in the supreme court, or county courts, the parties to the suit or proceeding, or their attorneys or solicitors, by consent of the justice or judge who shall try the cause, may in writing stipulate to hear, try, and determine such cause or 'proceeding elsewhere than at the court house of the county where the same shall be pending. Such stipulation shall specify the place of trial or hearing, and shall be filed in the office of the clerk of the court in which the cause or proceeding shall be pending, and such trial or hearing shall be brought on upon notice as in other cases, unless the time thereof shall be fixed by such stipulation." ( 2 R. S., 4th ed., 363; Laws of 1847, c. 470, s. 41).

g. In the second judicial district, there is a general rule by which issues of law must be first tried and decided at special term. See Court Rules, post.

h. Issues of fact to be tried by the court may be tried at the circuit or special term. Supreme Court Rule 21.

$ 256. [211.] Either party may give notice of trial. Note of issue.

At any time after issue, and at least ten days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk at least four days before the court with a note of the issue, containing the title of the action, the names of the attorneys, and the time when the last pleading wås served; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue.

i. This section is identical with section 211 of the code of 1848, under which it was held, that a notice of trial served on the 9th, for the 19th, the 19th being a Monday, was a notice of ten days, and a sufficient notice under this section (Easton v. Chamberlin, 3 Pr. R., 412, 413); and a notice of trial served on the llih, for the 21st, held good. Dayton v. McIntyre, 5 Pr. R., 117. See section 407, note.

[ocr errors]

a. Does this section apply to a trial before a referee ?

b. In Holmes v. Slocum (6 Pr. R., 219), Johnson, J., says, It is unnecessary to examine the question whether a defendant can notice a cause for trial before a referee.

Section 256 “clearly has no reference to a trial before a referee.” Afterwards, in Williams v. Sage (1 Code Rep. N. S., 359), Allen, J., says, By reference to Holmes v. Slocum, it will be seen that the question supposed, by the referee, to have been decided in that case was not involved in the motion, and that the justice who gave the opinion expressly declined to examine it. His intimations, therefore, although entitled to respect, are not authoritative. I am of opinion that both plaintiffs and defendants are actors in all actions under the code, and that each has the right to notice for trial, either in court or before referees. Such has been the practice under the code, and its convenience and simplicity commend it to favor, and it should be upheld unless clearly unauthorized. By the code (s. 256), either party may issue a notice for trial. This is the only authority for either party to notice an action for trial before a referee, and if under it the plaintiff has the right to notice, the defendant has the same right.” And see Stephens v. Strong, 8 Pr. R., 339.

c. And in Matthews v. Jones (1 Smith, 429), Woodruff, J. (p. 432), says, “I have not been able to brin my mind to the conclusion that section 256 of the code has any application to a trial before referees. In express terms it requires the party giving notice to furnish the clerk with a note of the issue, and the clerk is ihereupon to enter the cause upon the calendar, and the notice of trial must be given at least ten days before the court. These are all provisions of a single section, all closely connected with each other, and wholly inapplicable to a trial before referees; and on p. 433 he says, “ Without pursuing the subject further I may say that I concur with Justice Johnson in the result to which he arrived in Holmes v. Slocum (6 Pr. R., 217). It may be that under the amendments made in 1852, the defendant may be entitled to give the notice of trial, but it is to my mind doubtful whether the new language introduced in that section was intended to do more than supply what had been omitted before, namely, to say upon what notice a trial before referees could in any case be brought on;" and in Thomson v. Krider (8 Pr. R., 249), Welles, J., concededthat section 256 did not apply to a trial before referees, but that by the areadment to section 272 either party may give notice of trial before a referee.

d. Where all the defendants appear, but only some of them put in an answer, notice of trial must be given to all the defendants, those who answer and those who do not answer. Tracy v. N. Y. Steam Faucet Co., 1 Smith, 346 ; and per Woodruff, J. (p. 356), “ By section 414 it is expressly provided that service of notice or papers in the ordinary proceedings in an action, shall be made upon a defendant (who has not demurred or auswered), or upon his attorney—if notice of appearance in the action has been given; and section 417 provides that where a party sball have an attorney in the action, the service of papers shall be upon the attorney. Upon this subject there does not appear to me to be room for discussion, nor is there any thing new in these provisions. Where a defendant had appeared, it was always necessary to give bis atiorney notice of the execution of a writ of inquiry or of an assessment of damages, although he had not put in a plea. And where there was more than one defendant, one of whom had pleaded, and the canse was brought to trial on the issue made by him, with an order to assess damages as to the other, the attorney for the latter was entitled to notice of such assessment. So in Chancery, when a cause was brought on to be heard, upon pleadings and proof as to some of the defendants, and upon the bill taken pro confesso as to the others, or where the bill was taken pro confesso as to all for the want of an answer, the defendants who had appeared in the suit were all entitled to notice of hearing."

e. The words " before the court," when applied to actions pending before a referee, should be construed before the day named in the notice, or designated by the referee for the trial. Williams v. Sage, 1 Code Rep. N. S., 358.

f. In the New York common pleas, the notice of trial must be for the first day of the term, and where the patties agree in writing to waive a trial by jury, the note of issue is to state such consent. See Rules in Appendix.

g. Notes of issue for the general term are to be filed four days before the com


mencement of the court at which the cause may be noticed. See Rule 34 of Supreme Court Rules, in Appendix.

a. In the superior court, notes of issue in causes which have once been on the calendar for trial or argument, are to specify the number of the causes on the last preceding calendar and the date of such calendar. And every note of issue is to state whether the cause is to be placed ou the general term, special term, or trial term calendar. Notes of issue for the general, special, and trial terms must be filed with the clerk eight days before the commencement of the first day of the succeeding term, and for the special term the clerk will prepare a calendar, containing first, the issues of law noticed for argument at such term, and second, all issues of fact noticed for trial which are designated on the notes of issue as causes not required to be tried by a jury, by section 253 of the code, or in which a jary trial is waived. Superior Court Rules, in Appendix.

b. In the court of appeals either party may bring on the argument on a notice of eight days, which notice, except in criminal cases, is to be for the first day of the

A copy of the notice specifying the judicial district in which the cause origipated, is to be furnished to the clerk, eight days before the first day of the term. See Rule 8, of the Rules of the Court of Appeals, in Appendix.

c. In Wilkin v. Pearce, 4 Pr. R., 26, it was held by the court of appeals, that an attorney should not wait until the last day but one for filing notice of argument or issue before sending to the clerk a copy to file for the calendar; and if he does thus wait without a sufficient excuse, and circumstances then transpire which prevent him from sending the notice in season for the calendar, he will not be allowed to put his cause on the calendar, whatever his excuse may be, after that time.

d. Where there are two actions depending between the same parties and prosecuted and defended by the same attorney, and one action only is noticed for trial, the notice should specify the action intended to be tried, or it may be considered in. sufficient. Lesher v Parmelee, 1 Wend, 22.

e. The notice of trial must state the plaintiff's intention to taks an inquest, or he cannot do so. Rule 12, Supreme Court.

f. If besides the issues to be tried there are also damages to be assessed on a default entered in the same action, the notice of trial should also express the plaintiff's intention to have such damages assessed by the jury who try the issue. 6 Cow., 599.

g. And where an answer is framed with a view to affirmative relief, if the defendant notice the cause, his notice should, it is thought, express his intention to take judgment for such relief.

h. Prior to the code, in all personal actions, except replevin (2 R. S. 22. ed., 436, s. 46), the plaintiff alone was authorized to notice the cause for trial. In the English practice, where the plaintiff neglects to notice the cause for trial, the defendant may proceed to the trial by proviso as it is termed, instead of moving for & nonsuit. The trial by proviso was and is of rare occurrence. An instance of it in this State is The People v. Bank of Washington, 7 Cow., 519.

i. After noticing the cause, the party giving the notice may countermand the same, but he will have to pay the costs incurred by the opposite party in consequence of the notice. (2 R. S., 514, s. 37; 2 Wend, 241 ; i Pr. R., 66, 53.) The notice of countermand would be uuavailing where both parties notice the cause.

j. If no notice of trial be given, or the notice be irregular or insufficient, and the plaintiff proceeds to trial, and obtains a verdict, the court, on application of the defendant, will set the verdict aside. 1 Arch. Pr., 154; 2 1b. 226; 2 Tidd's Pt. 813; 15 Johns. R., 399. See 1 Caines R., 154. But in determining the sufficiency of the notice, the court will inquire whether the attorney or party was mis

. led by the defect (3 Caines R. 86, 133; 4 Cowen, 60; 11 Wend., 178); and for this purpose they will look not only to the face of the notice, but to other circumstances, to see whether the opposite party was in fact misled, 4 Cowen, 60. Thus, where the name of one of the parties was written Jeunis, instead of Teunis, it was held sufficient. 3 Caines R., 133. So, a notice of trial for Tuesday the 18th, instead of Monday the 18th (3 ib. 87), or for the third Monday instead of the third Tuesday,


the party not being misled (4 Cowen, 60), was held sufficient. And see 1 Chitt., R., 11.

a. A dismissal of the complaint founded upon service of the notice of trial or hearing, is irregular if obtained without placing the cause on the calendar. Browning v. Paige, 7 Pr. R., 487.

b. Formerly where there were several issues joined at different times in the same cause, its order on the calendar was determined by the date of the first issue. 3 Cow., 16. The wording of the section seems to savor the idea that the time when the last pleading was served is the date of the issue.

$ 257. [212.] Order of disposing of issues on the calendar.

The issues on the calendar shall be disposed of in the following order; unless, for the convenience of parties or the dispatch of business, the court shall otherwise direct :

1. Issues of fact to be tried by a jury;
2. Issues of fact to be tried by the court;
3. Issues of law.

c. By laws of 1850, cap. 128, p. 200, every issue joined in any action brought by the attorney-general, pursuant to the joint resolution of the senate and assembly of the 10th day of April, one thousand eight hundred and forty-eight, or proceedings in the nature of a quo warranto, shall have a preference, at the court at which it shall be noticed for trial, over all other causes ; and every case made, special verdict rendered, and bill of exceptions taken on such trial, and every issue of law joined on the pleadings in such suit or proceedings, and every appeal from any judgment rendered in any such suit or proceedings, shall have a preference in the argument thereof, in any court where the same may be pending.

d. The joint resolution above referred to (laws of 1848, p. 582), is that the attorneygeneral be instructed to ascertain whether, in any lands of this State now claimed to be held under any of the manorial titles referred to in this report, the claim of the present landlords be open to just doubt and question, and whether, in his judgment, this State may justly and legally lay claim to the title of the same, or any part thereof, by escheat or otherwise ; and if, in his opinion, the title of the present claimants may be justly questioned, and the right of the State to such lands, or to any part of the same, be established according to law, that he take such measures, either by suit at law, or any other proper proceedings, as will test the validity of such titles or claims.

e. By 2 R. S., 2nd. ed., 374, s. 11, presumed to be still in force, actions against corporations on a note or other evidence of debt, for the absolute payment of money on demand, or at any particular times, have a preference over other causes.

f. Issues of law have a preference on the calendar. Code, s. 255.

g. Inquests may be taken in actions out of their order on the calendar. Rule 12 of Supreme Court Rules.

. As to causes on the calendar of the court of appeals, see section 13.

i. In the supreme court in the first district, Any cause belonging to either of the two following classes, may be placed on a Special Circuit Calendar, unless the trial is likely to occupy more than one hour,

Ist. Where the action is on contract, and the answer merely denies the allegations in the complaint, without setting up any new matter;

2d. Where the action is on contract, and new matter is set up in the answer, and there shall be reason to believe that the defence is made only for the purposes of delay.

To entitle the cause to be placed on such a calendar, the plaintiff's attorney must give notice four days before any Movday in the circuit, that he will move on such Monday to have the cause placed on such calendar; and the motion will be

[ocr errors]

heard on such Monday, and if granted, the cause may be heard on the following Friday.

If the motion be founded on the belief that the desence is for delay, affidavits must be served at the time of notice.

The plaintiff's attorney must also deliver to the Clerk of the Circuit a like notice, also four days before such Friday, containing also the number of the cause on the General Circuit Calendar.

The same motion may be made on any day before the Judge at Chambers, on notice of four days.

Il the cause shall actually occupy more than one hour on the trial, the trial may be suspended at the discretion of the court, and the cause be put down at the foot of the calendar."

a. Cases on certiorari have a preference. Supreme Court Rule 42.


Trial by Jury.

Section 258. Notice of trial. Separate trials.

239. Court to be furnished with copy summons, pleadings, &c.
260. General and special verdicts defined.
261. Verdict in action for recovery of specific personal property, when

in action for recovery of money only, or real property, jury
may render either general or special verdict; and when the

court may direct, special finding.
262. Special finding, with general verdict.
263. Jury to assess defendant's damages in certain cases.
264. Entry of verdict. Motion for new trial.
265. Motions for new trial, &c., where heard.

$ 258. [213.] (Amended 1851.) Notice of trial. Separate trials.

Either party giving the notice may bring the issue to trial, and in the absence of the adverse party, unless the court for good cause otherwise direct, may proceed with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. A separate trial between a plaintiff

' and any of the several defendants may be allowed by the court, whenever, in its opinion, justice will be thereby promoted.

b. By rule 12 of the Supreme Court Rules, it is provided : " Inquests may be takea in actions out of their order on the calevdar, in cases in which they were he retofore allowed at the opening of the court, on any day after the first day of the court, provided the intention to take an inquest is expressed in the notice of trial, and a sufficient affidavit of merits shall not have been filed and served." This rule corresponds with the 31st of the law rules of 1847. The manner of stating the advice of counsel is prescribed by rule 36 of the present Rules of the Supreme Court, which requires that the party shall swear he has fully and fairly stated the case to his counse), and must give the name and place of residence of such counsel.

« PředchozíPokračovat »