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his own discretion, the latter thinks fit to draw one up in his own terms, it is signed by him, without subsequent communication with the parties, or delivery of a decision in open court, in which case, the order may, of course, be entered by the prevailing party without further preliminary.
The form of the order having been settled, and the judge's signature obtained to it in all cases, the order so signed, if not one of course, as before alluded to, must be entered with the clerk of the court. The practice in this respect is distinctly laid down in Savage v. Relyea, 3 How. 276, 1 C. R. 42, as follows: “When a motion is made to a justice, out of term, upon notice,” (and of course the same principles apply à fortiori to cases where the order is made at special term), “as well the papers on which the motion is founded, as those used in opposition thereto, should be filed with the clerk of the county in which the venue is laid, or, in case the place of trial has been changed, in the county to which the other papers in the cause are transferred. The Code evidently contemplates that the order, or decision made by the justice, should also be entered with the clerk—all the papers and orders in a cause, should be filed and entered in the same clerk's office, and, if not so entered originally, should be transferred and filed, and the orders reentered in the office of the clerk of the county designated as the place of trial.” In a subsequent part of the decision, it is laid down that the doing of this is incumbent upon the prevailing party, and that, in ordinary cases, the papers may be safely confided to him by the judge for that purpose. The principle that ex parte orders made at chambers, need not, in most cases, be entered with the clerk, is also distinctly enounced.
The prevailing party must accordingly see that the order is duly entered, and the necessary papers duły filed with the clerk of the proper county, according to the principles above laid down. It is of course competent to the losing party to insist upon every paper being properly filed ; and in the event of any neglect or dereliction on the part of his adversary, he may apply to the court, either on notice, or by order, to show cause. It may be very necessary to insist upon this in certain cases, where an appeal is contemplated, and in order that all the papers used on the motion in the court below, may be duly brought before the appellate tribunal.
An appeal will not lie from any order, unless first entered
with the clerk as above. Provision is made in this respect by section 350, under which, for the purpose of an appeal, any party affected by an order,“ may require it to be entered with the clerk, and it shall be entered accordingly.” See Savage v. Relyea, above cited. See, also, Nicholson v. Dunham, 1 C. R. 119. If, on the contrary, an order be improperly entered, it may be stricken out and vacated on motion. V. Bedell v. Powell, 3 C. R. 61.
Ex parte orders where not mere matters of course, should in most cases be entered also, and the papers on which such orders are granted should, as a general rule, be filed with them.
This is peculiarly the case with regard to those applications by which important relief is granted, under circumstances which may be contested hereafter; as, for instance, on applications for provisional remedies, or for service by publication. In Vernam v. Holbrook, 5 How. 3, it was, however, held that, on an application of the latter description, it is not imperatively necessary to file the affidavits, and an order of that nature was sustained, on an additional affidavit, omitted to be filed with two others which duly accompanied the order, on proof that such affidavit had been used before the judge, as well as those above referred to.
The case is, however, of an exceptional nature, and the decision evidently contemplates the filing of all the affidavits used, as the more proper course.
Where an order is obtained on a consent signed by the parties, it must be entered in due course, and the consent annexed to, and filed with it. In the first district, the consent and order thereupon must be submitted to the judge, and his signature obtained, before entry with the clerk. In the second, and others, the order may be entered at once by the latter without the judge's signature, on the consent being produced and filed.
The order having been duly entered, and the papers on which it was granted duly filed, a certified copy should be obtained from the clerk of the court. His fee on such copy is the usual payment of ten cents per folio, and may be charged as a disbursement. It is an usual practice to prepare the copy and examine it with the clerk, paying him the fee. This will be found a convenient method, where dispatch is an object, though of course, it is not incumbent on the party to do so, but the clerk is, on the contrary, bound to furnish the copy on payment of his fee.
The order being thus entered, and a certified copy obtained, a copy of the latter should be served on the opposite party, with a formal notice endorsed, to the effect that it is a copy of the order so made. The same is the case with reference to orders of course, not entered with the clerk, copies of which should be served in like manner. This should be done at once, and should never be neglected or deferred, for the obvious reason that the time within which an appeal may be taken by the adverse party, runs, under sec. 332, from the date of that service only, without reference to the date of making the order; and, if that precaution be neglected, the time for lodging such an appeal will therefore be indefinitely postponed.
In cases where a motion has been granted, on payment of costs, or on the performance of any condition, or, when the order requires such payment or performance, the party whose duty it is to comply therewith, is, by rule 38 of the supreme court, allowed twenty days for that purpose, unless otherwise directed in the order. Where costs are to be taxed, the party is, by the same rule, allowed fifteen days for their payment, after taxation upon notice.
The enforcement of orders will be hereafter considered, under the heads of special proceedings, and execution.
The questions as to the review or vacating of orders, will be likewise fully considered, under the head of appeals.
Ex parte orders may be vacated or modified, without notice, by the judge who made them; or by the same, or any other judge, on notice in the usual manner. (See Code, sec. 324.) Orders of any naure may be set aside for irregularity, on a regular application. An order may also be revoked, under rule 87, if unduly obtained, by means of a second application, on the same state of facts on which a previous motion has been refused. Orders made upon notice are, in the last place, reviewable by means of an appeal, under the provisions of the Code for that purpose, as considered in a subsequent division of the work.
OF PLEADING, GENERALLY CONSIDERED.
OF THE ESSENTIAL REQUISITES OF PLEADING.
Of all the radical and searching changes effected by the Code, perhaps the most so, is that, in the matter of pleading, the whole fabric of which, in actions of strictly common law cognizance, has been swept away in toto, and supplanted by a new system, borrowing its nomenclature, and, in some respects, its general forms, from the former equity practice; but yet, in many respects, independent of the rules by which that practice was governed.
The preamble of the Code lays down this intention on the part of the Legislature, in the widest terms, as follows:
“Whereas, it is expedient, that the present forms of actions and pleadings in cases at common law should be abolished, that the distinction between legal and equitable remedies should no longer continue, and that an uniform course of proceeding, in all cases, should be established.'
The immediate controlling agent, by which this change is effected, is section 69, running as follows:
$ 69. The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished ; and there shall be in this state, hereafter, but one form of action, for the enforcement or protection of private rights, and the redress of private wrongs, which shall be denominated a civil action.
By section 140, also, the following provision is made, the phraseology being rendered still stronger and more definite, on the recent amendments.
$ 140. All the forms of pleading heretofore existing, are abolished; and, hereafter, the forms of pleading in civil actions, in courts of record, and the rules by which the sufficiency of the pleadings are to be determined, are those prescribed by this act.
In Giles v. Lyon, 4 Comst. 600, 1 C. R. (N. S.) 257, the necessity of keeping the preamble of the Code in view, by those who are called upon to interpret its provisions, is strongly enforced ; and the effect of the provisions above cited, is thus defined: “They,” i. e., Law and Equity, “were to be blended and formed into a single system, which should combine the principles peculiar to each, and be administered thereafter through the same forms, and under the same appellation.”
Although the adoption of a general and uniform system of pleading, in all cases, is a most desirable object, and is, above all others, the grand alteration which it is the express design of the Code to effect ; and, although the formal distinctions between Common Law and Equity pleadings be, as unquestionably they are, abolished by that alteration; still, such is not, and cannot be the case, with reference to the essential and inherent distinctions between Law and Equity themselves, as two separate, though connected sciences.
As long as the common law, with all its attendant doctrines, remains an existent agent, so long must the essentials of the two systems, as hitherto administered, remain indestructible. The object of the legislature, doubtless, was to blend them into one harmonious and connected whole, as far as practicable, both as to matters of form and matters of substance, and much has been done in this respect; but, to effect it wholly, was, and, as regards the latter especially, must ever remain beyond the reach of their powers.
Distinct and positive assertions of the indestructibility of the distinctions between law and equity, and of the distinctive principles of legal and equitable relief, appear, it may be safely said, in every case, in which the matter has been brought seriously under the consideration of the courts throughout the state.
In Shaw v. Jayne, 4 How. 119, 2 C. R. 69, the earliest case upon the subject after the passage of the Code, the position above taken is maintained in the clearest and most positive terms.
In Knowles v. Gee, 4 How. 317; Hill v. McCarthy, 3 C. R. 49; Merrifield v. Cooley, 4 How. 272 ; and Floyd v. Dearborn, 2