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ent construction might give an appeal after the 1st of July, in a case where the right of appeal had been lost by the lapse of time before the code took effect, which could not have been intended by the framers of the code."
When a final order, judgment, or decree, is made after 1st of July, 1848, whether the suit was commenced before or after that day, the right to appeal, &c., depends upon the code. Selden v. Vermilya, 1 Code Rep., 110. 1 Coms., 534. Mayor of New York v. Schermerhorn, 1 Code Rep., 109. 1 Coms., 423.
This section (s. 11) repeals sections 5 and 10 of the judiciary act (Laws of 1847, p. 639), giving an appeal from the decisions of the supreme court granting or refusing a new trial on a bill of exceptions. Tilley v. Phillips, 3 Pr. R., 364. 1 Code Rep., 111. 1 Coms., 610. And see also, Grover v. Coon, 3 Pr. R., 341. 1 Code Rep., 96. Selden v. Vermilya, 3 Pr. R., 342. 1 Code Rep., 101. Anon. 1 Code Rep., 101; therefore in Tilley v. Phillips (supra), it was decided that no appeal lay to the court of appeals from an order made upon a bill of exceptions under the judiciary act of 1847, because such order was made after the 1st of July, 1848 (the day the code went into operation), although the suit had been commenced before July, 1848. The court in deciding the point, said, "The code (ss. 11, 282,) gives this court jurisdiction in certain specified cases, and no others,' and the order appealed from is not among the specified cases. The provisions of the act giving the appeal are inconsistent with the code (s. 11), and are consequently repealed." The same was held in Grover v. Coon, and Selden v. Vermilya, (supra.) In Grover v. Coon, a writ of error was pending in the supreme court on the 1st day of July, 1848, on a judgment rendered by a justice of the peace in an action originally commenced in a justice's court. On the 20th of July, 1848, the supreme court affirmed the justice's judgment. The appeal was from such judgment of affirmance; and on motion such appeal was dismissed, because the judgment of affirmance was subsequent to the 1st of July, 1848, and the code gave no appeal. In Selden v. Vermilya, in the supreme court an order had been made in September, 1847, at special term, dissolving a temporary injunction, which order was confirmed on appeal to the general term in September, 1848. An appeal was taken from the order at general term, and dismissed on motion, because the order was made after July, 1848, and no appeal from such an order was authorized by the code. Again, in an anonymous case, 1 Code Rep., 101, in a suit commenced before July, 1848, an order granting a new trial was made at a general term of the supreme court in November, 1848. An appeal from such order was dismissed on motion, because, as the court said, "the 11th section of the code confines the jurisdiction of the court of appeals to cases where judgment has been rendered in the court below. That section (s. 11) is in the first part of the code, which is not restricted in its application to suits commenced before July, 1848," it consequently repeals section 5 of the judiciary act. But where an appeal from the decision of the supreme court, granting a new trial on a bill of exceptions was taken under the judiciary act before the code went into effect, it was held that the court had authority to decide such appeal after the code took effect. Butler v. Miller, 3 Pr. R., 339. 1 Code Rep., 110. In the case last cited the court said: "The code specifies the cases in which there may be an appeal to this court, without including the appeal on a bill of exceptions provided for by the judiciary act of December 1847, and abolishes writs of error and appeals as they have heretofore existed. And further, all statutory provisions inconsistent with the code are repealed. But originally these provisions only applied to actions commencedon or after the first day of July last (ss. 8, 391, 10), and the supplemental code has only applied sections 271 and 282 to future proceedings in suits pending on that day (s. 2). This appeal was taken prior to the first day of July 1848, and we will have jurisdiction to hear it. Code (s. 10). The act of December 1847, when applied to appeals depending on the first of July, is not so inconsistent with any thing in the code as to come within the repealing section, (388). The code makers did not intend to take away any right which had already attached under the old law; but only to change the law for the future.
"Whether appeals may still be brought from the decision of the supreme court on bills of exceptions in cases where the action was pending prior to the first day of July, is a question which need not now be decided.
"We are of opinion that this appeal may be prosecuted in the same manner as though the code had not been passed." And see also Spaulding v. Kingsland, 1 Code Rep., 110; 1 Coms., 426. Rice v. Floyd, 1 Code Rep., 112. Dunlap v. Edwards, 3 Code Rep., 197. 3 Coms., 341.
5. It has been decided that no appeal will lie to the court of appeals in the following cases.
Where there was a verdict and judgment without any exceptions or proceedings intermediate the verdict and filing the judgment record, and an appeal was brought upon the judgment. The suit was commenced prior to 1st July, 1848; but the verdict and judgment were obtained after that time. Lake v. Gibson, 3 Pr. R., 420. Upon a mere question of costs. Sherman v. Daggett, 3 Pr. R., 426.
From a decision on a motion to set aside a judgment or decree, either for ir regularity or as matter of favor. Sherman v. Felt. 3 Pr. R., 425.
To review a judgment upon a report of referees, upon a case containing merely the evidence before the referees, and the same used before the supreme court. Sturgess v. Merry. 3 Pr. R., 418.
From the decision of the supreme court on a case: there must be a bill of exceptions or special verdict. So held, where there was a trial in an action of ejectment, and a verdict taken subject to the opinion of the supreme court upon a case to be made-which was made, and the general term gave judgment for the defendant on the case-which order was appealed to this court. Wright v. Douglass. 3 Pr. R., 418.
From a judgment, except upon a bill of exceptions or special verdict, presenting questions of law. So held, where there was a trial before a justice, without a jury, and a case made, upon which the general term denied a new trial, which was incorporated in the record, and appealed to this court. Livingston v. Radcliff. 3 Pr. R., 417.
From an order of the supreme court at a general term, denying a rehearing of an order made at a special term, where the order made at special term is such as would not be reviewed by this court on appeal if confirmed by the general term. Marvin v. Seymour, 1 Code Rep., 111; 3 Pr. R., 340. 1 Coms., 535.
Thus, where a motion was made at a special term for an order to compel one of the complainants to appear and submit to an examination before a master to whom the cause had been referred, and was denied, and an appeal then taken to the general term, where a rehearing was denied, held, not an appealable case to this court, even if the general term had confirmed the order. Ib.
From an order on a rehearing at a general term of the supreme court vacating an order of reference to ascertain the amount of damages occasioned by a temporary injunction. Anon. 4 Pr. R., 80.
From an order setting aside a decree of divorce taken as confessed, and allowing alimony. Carpenter v. Carpenter, 2 Code Rep., 83. 4 Pr. R. 139.
From a decision on a motion to dissolve a temporary injunction. Vandewater v. Kelsey, 2 Code Rep., 3. 3 Pr. R., 338.
From the verdict of a jury upon a question of fact, upon the trial of which there is a question as to the credibility of a witness by which it is sought to be proved. Rice v. Floyd, 4 Pr. R., 27. 1 Coms., 608.
From an order setting aside an answer as frivolous, and that the plaintiff have judgment as for want of an answer, and a further order that the defendant submit to an examination on oath concerning his property, and the judgment to be given on the complaint. It is not the final judgment in the action. Dunham v. Nicholson, 2 Code Rep., 70; 4 Pr. R., 140.
From an order at special term without first being reheard at general term. Gracie v. Pierson, 3 Pr. R., 218. 1 Coms., 228.
On reversal by supreme court of judgment of common pleas on bill of exceptions contained in the record as an appeal under act of Dec. 1847. Fargo v. Brown, 3 Pr. R., 294. 1 Coms., 429.
From an order of the Chancellor deciding a motion to open the biddings at a master's sale. Hazleton v. Wakeman, 3 Pr. R., 457.
From an order of the supreme court at general term, reversing a judgment obtained at the circuit and ordering a new trial. Duane v. Northern R. R. Co., 3 Code Rep, 72. 4 Pr. R., 364. 3 Coms., 545.
From an order awarding or refusing an issue to be tried at law, and the granting or refusing a new trial. Lansing v. Russell, 4 Pr. R. 213.
Are such orders subject to review when the final order on the merits is considered. Ib.
From a decree which directs a reference for the purpose of taking an account
between the parties, and for other purposes, and reserves further directions until the coming in and confirmation of the report, and then, "that such further order and decree may be made thereon as shall be just." It is not a final decree. Cruger v. Douglas, 2 Code Rep., 119; 4 Pr. R., 215. Harris v. Clark, 2 Code, Rep., 47; 4 Pr. R., 78.
From an order made at the general term of the supreme court, confirming an order vacating a master's or receiver's sale. It was a matter in the discretion of the court. Wakeman v. Price, 3 Code Rep., 186. 2 Coms., 334.
From an order made at the general term of the supreme court confirming an order which denied a motion to set aside a judgment entered on a warrant of attorney, before the code went into effect. Dunlop v. Edwards, 3 Code Rep., 197. 3 Coms., 341.
From a decision at the circuit on a case. So held where a case was inserted in the judgment record, and was there called a bill of exceptions, but had not in fact been turned into a bill of exceptions. King v. Dennis, 3 Pr. R., 419. 2 Coms., 189.
From an order of the supreme court at general term denying a motion for a stay of proceedings on a judgment, and for liberty to move to set aside a report of a referee without an appeal, or for an order extending the time to appeal. Enos v. Thomas, 5 Pr. R., 359.
Where an action was commenced in a justice's court, and the proceedings discontinued by reason of title coming in question, and an action for the same cause was commenced in the old court of Common Pleas, and by operation of law was transferred to the supreme court,-the appeal from the judgment of the supreme court, in such action was dismissed, on the ground that it was an action originally commenced in a justice's court. See Brown v. Brown, 6 Fra. R., 320. (This decision seems to overrule Hyland v. Loomis, 3 Pra. R., 223.)
The court cannot review the decision of referees, or the judgment of a subordinate court for an error of fact merely, however clearly the decision may be against the testimony. Borst v. Spelman, 4 Coms., 284.
On an appeal from a judgment, the court will not review an order made at chambers, and from which no appeal has been taken to the general term of the court below. Kanouse v. Martin, 1 Code Rep., N. S. 385. 6 Pr. R., 240.
An order of the court below refusing to stay proceedings, until the determination of another controversy involving the same question, is not a proper subject of review in the court of appeals. James v. Chalmers, 1 Code Rep. N. S., 413.
A refusal of a referee to adjourn the hearing before him, where it is a matter resting in his discretion, will not be reviewed on appeal. Carpenter v.Haynes, 1 Code Rep. N. S., 414.
The finding of a referee on the questions, whether the plaintiff had performed his contract, and whether performance had been waived, will not be reviewed by the court of appeals on appeal from the judgment of the supreme court affirming the report of the referee; because they are questions of fact only. Newton v. Harris, 1 Code Rep. N. S., 414. And see Easterly v. Cole, 3 Coms., 502. Davis v. Allen, Ib. 168. The provision allowing an appeal from a "final order affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment," does not include an order granting or refusing a provisional remedy, nor an order vacating or refusing to vacate such provisional remedy, because such provisional remedies are not contemplated by the words, "special proceedings," in subdivision 3 of section 11 of the Code. Genin v. Tompkins, 1 Code Rep. N. S., 415. An appeal from a judgment on a report of referees, was dismissed on motion, the record not stating the facts as found by the court below, and there being no bill of exceptions, but simply a case setting forth all the evidence given on the trial. Colie v. Brown, 1 Code Rep. N. S., 416.
6. It has been decided that an appeal will lie in the following cases: Where the supreme court on appeal reverses the judgment or decree of a subor dinate court, although further proceedings were directed to be had in the court where the suit or proceeding originated; and, therefore, where a surrogate dismissed a proceeding instituted before him to bring executors to account, and the supreme court, on appeal, reversed his decree with costs, and directed him to proceed with the account, held, that an action would lie to the court of appeals. Messerve v. Sutton 3 Code Rep., 198. 3 Coms., 546.
From a decree at a general term of the supreme court reserving no questions, and nothing to be done but to compute the amount due, after the referee's report of the amount due had been confirmed. Swarthout v.Curtis, 3 Code Rep. 215. 4 Coms. 415.
A party against whom a judgment has been rendered in the court below, is not prevented from appealing to the court of appeals, by the fact that he has paid the judgment, unless such payment was by way of compromise and agreement to settle the controversy. Wells v. Danforth, 1 Code Rep. N. S., 415.
12. [12.] Power of court.-The court of appeals may reverse, affirm, or modify the judgment or order appealed from in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the court below, to be enforced according to law.
The court will not reverse a judgment overruling a demurrer, where the defect in the pleading demurred to was formal and technical merely, and should have been amended by the court below. McCormack v. Pickering, 4 Coms., 276. A judgment ought not to be reversed on the ground, merely, that the court below neglected to make a formal amendment, which might and ought to have been made. Ib. 282.
In the report of McFarlan v. Watson, 4 Pr. R., 128; 2 Code Rep. 69, it is said to have been decided by the court of appeals, that a remittitur sending the proceedings to the court below, was not authorized on the dismissal of an appeal, and that a remittitur was to be made only in cases where the court gave judgment (of affirmance or reversal or any modification of the judgment or decree of the court below, as the case may be) upon the merits. That case was, however, afterwards alluded to as being incorrectly reported in that respect (4 Pr. R, 184, and post), on an appeal taken to the court of appeals in September, 1848; the appellant not having served a case in compliance with the 7th rule of that court, which took effect on the 1st of July, 1849, the respondent, on August 14, 1849, entered an order dismissing the appeal, with costs. The cause was remitted to the court below. On motion to set aside such order, the court on denying the motion, held, that the 7th rule applied to appeals pending prior to the adoption of that rule, and said:
“After a return has been filed, any order made which finally disposes of the appeal, whether upon the merits or not, it is proper to remit the proceedings to the court below. It is a mistake to suppose the court held otherwise in McFarlan v. Watson.
"After a cause has been regularly remitted to the court below, this court has no jurisdiction to grant relief. The only remedy is a new appeal. Newton v Harris, 1 Code Rep., N. S. 191; 8 Barb. S. C. R., 603."
Where too much costs are charged in such a case, the remedy is by motion to the court below. Dresser v. Brooks, 2 Code Rep., 130; 4 Pr. R., 207.
Where an appeal was on the calendar and dismissed for a defect in the undertaking, it was held the proceedings might be remitted, and the court said, "We were entirely misunderstood in McFarlan_v. Watson.” Langley v. Warner, 2 Code Rep. 97.
A remittitur cannot be made on the dismissal of an appeal under rule 2 of the court of appeals, for the reason that no return has been filed, for if no return bo filed there is nothing to remit. 4 Pr. R., 211, note-See Rules in the court of appeals in the appendix to this volume. In Doty v. Brown, 4 Pr. R., 429; 2 Code Rep., 3, where the plaintiff appealed to the court of appeals, but the bill of exceptions was alone returned to the court of appeals, without the judgment record, and on the motion of the defendant the appeal was dismissed for that cause, it was objected in the court below (the supreme court), that this section did not authorize a remittitur in such a case; but the court, (Mason, J.) said, "The determination of this question depends on the construction of this (12th) section; and the court of appeals have held in two cases, that a remittitur is authorized, and hence adjudged the very question in the case under consideration, and which it ill becomes this court to review."
After remittitur filed in the court below, the court of appeals has no further
the same city* from that at which it is appointed to be held.** Adjournment.-Any one or more of the judges may adjourn the court, with the like effect as if all were present.
The amendment to this section was the omission at the point where one asterisk is placed, of the words "or town;" and where two asterisks are placed, the words "and may in its discretion adjourn any term from the city or town where it is appointed to be held, to any other city or town," are omitted. And see, as to the terms of this court, laws of 1849, p. 484, c. 333, ss. 2, 3; and by laws of 1850, p. 45, chap. 41, it is enacted: Whenever any judge of the court of appeals, being a justice of the supreme court, shall be absent from the court, or there shall be a reason to believe that he will not attend, the governor shall designate some justice of the supreme court from the class of justices having the shortest time to serve, to supply the place of such absent judge; and such justice shall attend and be a judge of the court of appeals, until such absent judge, or some one duly qualified to take his place, shall attend the court. The last clause of section two, title one, chapter three, of the third part of the Revised Statutes (prohibiting judges from sitting or acting in certain cases), shall not apply to any judge of the court of appeals.
Of the Supreme Court,* Circuit Courts, and Courts of Oyer and Terminer.
Existing statutory provisions, as to terms, &c., repealed. 18. General terms.
§ 17. [15.] (Amended 1849.) Existing statutory provisions as to terms, &c., repealed.-All statutes, now in force, provid
*The Supreme Court.-When the code became a law, the supreme court lost none of its chancery jurisdiction. It is true, the distinction between suits in equity and actions at law was abolished, but the suit in equity survived in the "civil action," per Gridley J., in Myers v. Rasback, 2 Code Rep., 13; 4 Pr. R., 83, Myers v. Borland, ib. See Supreme Court Rules in appendix. The jurisdiction of the supreme court and its justices is defined by the Constitution, Art. vi, Sec. 3-6; 2 R. S., 259, s. 1; ib., 234, s. 60; Laws of 1847, p. 323, s. 16; Laws of 1848, p. 282, cap. 170; Laws of 1849, p. 27, cap. 30; ib., p. 117, cap. 82; ib., p. 150, cap. 111; Laws of 1850, p. 20, cap. 15; Laws of 1850, p. 9, cap. 1. But, say the commissioners on practice and pleading: " to ascertain what the precise jurisdiction is, it is necessary to recur to the jurisdiction of the courts of queen's bench, common pleas, and exchequer, in England, on the common law side, and to that of the court of chancery, in that country, on the equity side, and to collate with them the various modifications which the constitution and statutes of this State have introduced." This court has also jurisdiction of all civil actions now undetermined, and which were pending in the late