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hoven, 4 Pr. R., 327. It was objected that the judgment-roll could not be filed until after the time allowed to make a case (ten days) had expired, because the roll is to contain the case (section°281); but this objection was held not well taken, because a case can be afterwards made and attached to the roll on file. 16. and Renouil v. Harris, 2 Code Rep., 71; 2 Sand., 6+1, and where a party desires to make a case, he may on showing ground therefor, obtain an order staying proceeding

on the judgment. Ib.

a. In the case of an appeal, brought before the code went into effect, from a justice's court to a county court, it appeared that the judge decided the case in writing, but was accidentally prevented from filing his decision within twenty days after the term of the court at which the appeal was heard, and that the judge considered he had no power, after the expiration of said twenty days, to file the decision, and therefore refused to file it. On motion for an alternative mandamus, for the judge to show cause why he did not file his decision, the supreme court (Hand, J.) held that this section was directory only, and that the judge might file his decision at any time (People v. Dodge, 5 Pr. R., 47)—that it was not like the case of a justice of the peace taking time to give judgment after the cause had been submitted to him. lb.

b. In Titus v. Hay (not reported), Roosevelt, J., at special term, in January, 1852, ordered judgment of foreclosure and sale. The decision was entered by the clerk, and by him endorsed on the back of the order. On a motion to set aside the order for sale (the judgment), it was held by Edmonds, J., at special term (28th February, 1852), that the provisions of this (267th) section, requires that the decisions should either be in the handwriting of the judge or signed by him; and that the entry of the decision on the minutes by the clerk, or the filing of the decreo in open court, under the direction of the judge, was not a compliance with the provisions of the code; and the judgment was set aside. On the 2d of March, 1852, Roosevelt, J., without any application of the parties, rescinded the order of Edmonds, J., and gave the parties liberty to appeal to the general term. The question was argued before the general

term (Edwards, Mitchell, and Roosevelt, JJ.); and it decided (March 13, 1852 that the entry of the judgment was sufficient, and overruled the opinion of Edmonds, J.

c. The point was again adverted to in the court of appeals (Sands v. Church, 2 Selden, 356). " Another objection is, however, made by ahe appellants to the judg. ment below, and that arises under the 267th section of the code. It appears from the bill of exceptions that the cause was tried before a justice without a jury, and it is one of those cases which under section 254 is triable by the court Upon the trial the justice directed an order to be entered by the clerk in the minutes of the court that judgment be given for the plaintiff, and thereupon without the further order or direction of the court, or decision in writing of said justice, judgment was entered for the plaintiff, to which', as the record says, 'the defendant excepts.' The language of section 267 is very explicit, and as I understand it provides that a judgment in a case where the court acts both as judge and jury, to determine both law and fact, cannot be rendered orally, but only in writing. The decision may be made either at the trial or at any time within twenty days afterwards, and the meaning evidently is that whenever it is made, whether in open court in the presence of the parties, or after the court has adjourned and the justice has retired to his private apartment, that there shall be something to authenticate the judgment, something that shall place it beyond doubt what is the precise point decided; unless such be the meaning of the section in question, I can imagine none of any practical utility. But this consideration is by no means sufficient to warrant us in reversing the judg. ment, for it does not appear certainly that the point was raised below. If it had been, it was an objection which could easily have been obviated by an amendment." Per Edmonds, J.

$ 268. [223.] (Amended 1851-1852.) Exceptions, how and when taken.

For the purpose of an appeal, either party may except to a

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decision on a matter of law arising upon such trial, within ten days after notice in writing of the judgment, in the same manner, and with the same effect as upon a trial by jury. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge in settling the case must briefly specify the facts found by him, and his conclusions of law. But the questions, whether of fact or of law, arising upon the trial, can only be reviewed in the manner prescribed by this section, the questions of law in every stage of the appeal, and the questions of fact upon the appeal to the general term of the same court, as prescribed in section three hundred and forty-eight.

6. Before the amendment of 1852 this section read:

6. For the purposes of an appeal, either party may except to a decision on a matter of law arising upon such trial, within ten days after notice, in writing, of the judgment, in the same manner, and with the same effect, as upon a trial by jury. And either party desiring a review upon the evidence appearing on the trial, eithor of the questions of fact or of law, may, at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a bill of exceptions, or case containing so much of the evidence, and such erceptions as may be material to the question to be raised, The bill of erceptions or case shall be seitled " as provided by the rules of the court.” And the judge in settling such case shall briefly specify the facts found by him and his conclusions of law."

All the parts 'in italic were new in the code of 1851. The words as provided by the rules of the court,were substituted for the words “according to the existing practice."

b. The rules of court providing for the settlement, &c., of cases, are rules 15 to 19 inclusive, of the Supreme Court Řules.

c. The section, before amendment of 1851, was identical with section 223 of the code of 1848. Under that section, where a defendant in due time gave notice that he excepted " to the decision of the referee, whereby he decided that there was due from the defendant to the plaintiff the sum, fc.," and served a case (not veri. fied), to obtain a review upon the evidence. On objection to this notice and case, the court, Harris, Watson, and Parker, JJ., held, that the notice was equivalent to an exception to the conclusion of law derived by the referee from the facts found by him, and if so, it is sufficient to entitle them to a review of such decision upon appeal. The case may be, and probably is irregular, for not being verified as required by the 44th rule of supreme court law rules of 1847. Wilson v. Allen, 3 Pr. R., 369. But since that case was decided, the 44th rule, there referred to, has been abroga ted, and a case need not now be verified. Code s. 470. Supreme Court Rules, 15 to 18. See, further, notes to section 265 of this code, and to sections 7 and 8 of the act supplementary to the code, post.

d. “ As the code is now (May, 1852) amended, two modes of proceeding to obtain a review of a trial areprescribed. The one is applicable exclusively to a trial by jary, the other to a trial by ihe court, or by referees. These modes of proceeding are

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entirely distinct each from the other. In one, the review is had before judgment. In the other, it can only be had by appeal after judgment. In respect to trials by the court and by referees, the 268th section of the code de clares that questions, whether of fact or of law, arising upon a trial by the court, can only be reviewed in the manner prescribed in that section—that is, upon an appeal to the general term under the 348th section. For this purpose, when a review upon questions of law is sought, exceptions are to be taken within the time prescribed, ► and a case prepared and settled. The case and exceptions are to form a part of the judgment roll. The mode of review upon questions of fact, is the same as upon questions of law. The only difference is, that in the former case the decision of the general term is final ; while in the latter, another appeal may be brought to the court of appeals. The 272d section prescribes the same practice in all respects, where a review of the decision of referees is sought. From this examination it follows that no review of a trial by the court or referees, either upon questions of fact or of law, can be had until after judgment, and then only upon appeal brought in pursuance of the 348th section of the code.Per Harris, J., in Watson v. Scriren, 7 Pr. R., 10. The party to whom the decision is adverse, may make a case, and on procuring its settlement it will become a part of the judgment roll. When the judgment is persected, the party making the case is at liberty to appeal, and that appeal will bring up for review at the general term all the questions, whether of fact or of law, presented by the case. Ib. " If the decision and judgment are contrary to the legal effect of the case as admitted by the pleadings, I think the objection (ou that ground) can be taken without a case, and perhaps without exceptions, if the point be passed upon in the court below (Lake v. Gibson, 2 Coms., 188): and a party may also, within ten days after notice of the judgment, except to decisions on malters of law arising upon the trial, in the same manner, and with the same effect as upon a trial by a jury (s. 268). It is not clear what are the nature and office of these exceptions. By the next paragraph of the sentence, 'Either party desiring a Teview upon the evidence appearing on the trial either of the questions of fact or of law,' may make a case or exceptions in like manner as upon a trial by a jury, except that the judge, in settling the case,' must briefly specify the facts found by him and his conclusions of law. This case or the exceptions must be made within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court. The exceptions in these two cases, it would seem, are not the same. In one case they must be made in ten days, and in the other within that time, or within the tinie prescribed by the rules. Nothing is said about a review upon the facts or evidence by the former : the latter exceptions certainly should be accompanied by a statement of the facts out of which the question of law arose. Price v. Powell, 3 Coms., 322. Both merely raise questions of law; a review of the facts and evidence being the office of a case. Upon a case, questions of law may be raised at a general term; and, it would seem, the exceptions may be incor. porated therein, and facts and conclusions of law, as we have seen, are now inserted. (ss. 264, 268). The phraseology is very much changed from that of the code of 1848; and, possibly, the office of a case may have thus been changed in respect to taking a cause to the court of appeals; but probably, the former discrimination be. tween • cases' and bills of exceptions,' now called 'exceptions,' will still be made in that court. (Livingston v. Radcliffe, 2 Coms., 189 ; Code, ss. 268, 264, 345; and see Borst v. Spelman, 4 Coms., 284; Esterly v. Cole, 4 ib., 502). Secuion 264 implies that it may become necessary to separate exceptions when incorporated in a case. The exceptions in both cases provided for in section 268, are to be taken in the same inanner as upon a trial by a jury. Certainly, a party cannot on many questions of law—as admissions of evidence, &c., &c.--be allowed to except, for the first time, aster judgment. The fair construction of that section is, that as to all decisions made during the progress of the trial, the exceptions must be taken at the time, as on trials by a jury. But as to decisions upon matters of law not made until after the cause is submitted, these may be excepted to within ten days after notice of judgment. Thus, if the judge, after taking time to make a decision, grant or refuse a non-suit, or allow or reject a claim or title, &c., these come within the first part of the section, and the exception must be made within ten days after notice of judg. ment. If the exception be for some supposed error apparent on the record--that is,

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if any decision, even on a trial of an issue of fact, be inconsistent with the pleading -I do not see why a party may not except, without reference to any thing that transpired on the trial. But if the error is predicable only of something that took place there, I think the exception must still be accompanied with a history of so much of the trial as will make the exceptions apposite and intelligible, whether the exception be made before or after judgment. If a case is made, that also is attached to the record, or may afterwards be annexed by the order of the court. And on appeal to the general term, as I understand sections 268 and 348, all questions properly raised, whether of law or of fact, to a certain extent can there be examined.” Per Hand, J., in Gilchrist v. Stevenson, 7 Pr. R., 274.

$ 269. [224.] (Amended 1849-1851.) Proceedings upon judgment on issue of law.

On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the manner prescribed by the first two subdivisions of section two hundred and forty-six, upon the failure of the defendant to answer, where the summons was personally served. If judgment be for the defendant, upon an issue of law, and taking of an account, or the proof of any fact be necessary to enable the court to complete the judgment, a reference or assessment by a jury may be ordered, as in that section provided.

a. This section, before the amendment of 1851, was as follows: On a judgmen for the plaintift upon an issue of law, the plaintiff may proceed in the manner pre-t scribed by section 246, in cases where the summons or summons and complaint are personally served, and the complaint sworn to, upon the failure of the defendant to answer. If judgment be for the defendant, upon an issue of law, and the taking of an account or the proof of any fact be necessary to enable the court to complete the judgment, a reference may be ordered, or writ of inquiry issued, as in that section provided.

b. The decision of the court upon a demurrer cannot be appealed from as an order ; it is a judgment, and no appeal can be taken until the judgment is perfected. A defendant who has appeared is entitled to notice of settling the judgment. Thus, where the complaint was to set aside an assignment as fraudulent, the defendant demurred, and his demurrer was overruled. The defendant appealed before judgment was perfected. The plaintiff, without notice to the defendant, proceeded to settle and perfect his judgment. The plaintiff moved to dismiss the appeal, and the defendant to vacate the judgment, and both motions were granted. Wood y. Lambert, 1 Code Rep. N. S., 214; 4 Sand., 724.

6. Section 269 in terms "requires only where judgment is for the plaintiff in an issue at law, that proof of personal service of the summons and complaint on the defendant, and that 110 answer has been received, should be filed with the clerk before the entry of judgment. And this would seem to be all that is required by that section in any case where judgment is for the plaiotiff; although the action be in tort or on contract for unliquidated damages, and although the complaint is not sworn to. This is wholly incongruous with the proceedings to obtain judgment on failure of the defendant to answer. Where a demurrer of the defendant to the complaint is overruled, there is a failure to answer, and the like proceedings ought to be bad as in case where the defendant neglects to put in either an answer or demurrer to the complaint.” Paige, J. King v. Stafford, 5 Pr. R., 30. That case was an action on a note ; the defendant demurred, his demurrer was overruled on motion under section 247 ; the plaintiff, without notice to the defendant, and without any assessment of the amount due, entered judgment: it was held to be irregular.

d. The decision of the court, sustaining or overruling a demurrer, is not an order

but a judgment (Bentley v. Jones, 3 Code Rep. 27; Nellis v. De Forest 36 Pr. R., 413); and such decision must be reviewed by an appeal from the judgment.

a. In the case of Reynolds v. Freeman (4 Sand., 702), there was a demurrer to the complaint. The demurrer was argued at special term, and allowed, with leave reserved to the plaintiff to amend. The plaintiff served notice of appeal. He noticed the appeal for argument, and placed it on the general term calendar, and on its being reached, took an order by default reversing the order below. The plaintiff gave no security on the appeal, nor served any printed copies of the papers, and no judgment bad been entered when the appeal was taken. The defendant moved to set aside the order at general term as irregular. The order was set aside; and it was said, “The court deem it a proper occasion to settle the practice on this subject. The appeal must be brought as from a judgment, if a judgment have been entered; until judg. ment, it may be from the order drawn up and entered in the minutes. If, however, the decision is final, giving no leave to amend or plead over, it should be appealed from as a judgment in all cases. Such appeals, whether from orders or judgments, are enumerated motions, and are to be placed on the calendar for argument, and the necessary papers are to be printed, served, and furnished, as' are required in other calendar causes at the general term.”

CHAPTER V.

Trial by referees.*

Section 270. All issues referable by consent.

271. When reference may be compulsorily ordered.
272. Mode of trial. Effect of report.
273. Referees, how chosen.

$ 270. [225.] All issues referable by consent.

All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties.

* The following is an abstract of the prosent law and practice on trials before referees:

Referee defined. b. A referee is " a person to whom a cause pending in a court is referred by the court, to take testimony, hear the parties, and report thereon to the court, and apon whose report, it confirmed, judgment is entered.” Burrill's Law Dict, tit. Referee.

c. A referee under the code is not merely a substitute for a master under the former practice, but is clothed with the power of a judge at special term. When a specific question is referred to him, his office resembles that of a master; when the whole issue is referred to him, he takes the place of the court. Per Willard, J., in Graves v. Blanchard, 3 Code Rep., 27; 4 Pr. R., 303,

d. By the former Rules of the Supreme Court (rule 88), a justice of that court was prohibited from acting as a referee in any matter pending in that court. That rule was struck out at the revision of the rules in August, 1852, but whether or not a su.

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