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September, 1862; again, January, 1863.

Where the case made upon an appeal, fails to show the court in which

judgment was rendered, or to show such judgment as is set forth in the notice of apdeal, the appeal will be dismissed. It is not enough that the case states facts which make it probable, merely, that an appealable judgment has been rendered. *

* In BEECHER v. CONRADT (July, 1855), it was held that if the record of the judgment appealed from shows an actual determination of the court below, at general term, granting judgment, the appeal will not be dismissed on the suggestion that the appellant had not entered judgment at special term, and that it does not affirmatively appear that the case was regularly at the general term by appeal from a judgment.

This was an appeal by the defendant which the plaintiff moved to dismiss on several grounds, which appear in the opinion.

Matthew Beecher brought this action, in the supreme court, against Abraham Conradt, on January 11, 1851, to recover three hundred and ninety-six dollars, with interest, alleged to be due upon a certain contract held by plaintiff as assignee, dated January 3, 1839, and made between Abraham Varick, surviving executor of Benjamin Walker, deceased, and defendant, for a conveyance in fee of a certain piece of land in Herkimer county, to defendant, on condition that defendant should perform the covenant in said contract on his part, whereby he was to pay said Varick or his assigns, three hundred and ninety-six dollars, in five annual pay. ments, with annual interest.


Lahens v. Fielden.

But where the court can see that it is probable that the error is clerical,

and that in fact a right of appeal exists, it will allow the case to be

amended on terms. An appeal lies to the court of appeals from a judgment of the general

term, rendered upon argument, affirming a final judgment of any kind, if the latter is an actual determination of a court of record, and not merely rendered upon default.

The record of the judgment, from which the appeal was taken, was entitled in the supreme court, and dated February 10, 1853, without indi. cating in the heading what term, and the recitals were as follows:

" This action having been tried before Philo GRIDLEY, one of the justices of this court, at a circuit court held in and for the county of Oneida, at the academy in the city of Utica, on the eighteenth day of October, eighteen hundred and fifty-one, and the said judge having then and there rendered judgment in favor of the plaintiff

' against the defendant, for the sum of seven hundred and fifty dollars and sixty cents, with costs, to be taxed, and the defendant having excepted to the ruling of the judge on said trial, and having made a bill of exceptions and thereon moved a new trial, and this court having, at the January term thereof, held at the city of Utica, in the year 1953, denied said motion, which said motion was made and argued at a general term of this court, and the decision of the court thereupon being filed, whereby a new trial in said action is denied, now, on motion of Mann & Edwards, attorneys for the plaintiff, it is or dered and adjudged that the plaintiff recover of the defendant the said sum of seven hundred and fifty dollars and sixty cents, with interest thereon from the said eighteenth day of October, eighteen hundred and fifty-one, to the day of the entry of this judgment."

[Here followed the addition of interest and costs, as usual.]

E. J. Richardson, for defendant, appellant.

C. A. Mann, for plaintiff, respondent.

BY THE COURT.—DEAN, J.-As the respondent has omitted to avail himself of the neglect of the appellant's attorneys in procuring the return of the clerk within twenty days after the appeal was perfected, until after the return has been made ; and especially as he has himself, since the return was made, noticed the appeal for argument, he must be held to have waived all objection on that account.

The second and third grounds of motion are for omissions in the return and copies of the printed case, which this court would, on motion, allow the appellant to supply, and the respondent having waited two years before moving to dismiss on account of such omissions, the appellant must now have leave to perfect the return, and copies of the case already served, and without costs.

Lahens v. Fielden.

Suheld, in case of a judgment granted against a plaintiff in consequence

of his failure to comply with the terms of an order at special term.* Although an order directing the names of certain parties plaintiff to be

stricken out, might be deemed a mere question of practice within the discretion of the court, and not reviewable on appeal in the court of appeals, yet where such an order further requires the remaining plaintiff

The reason for the motion, fourthly named, that the judgment appealed from has never been passed upon by the general term, is of a nature, as it goes to the jurisdiction of this court, which cannot be waived by any lapse of time.

This is an appellate court only, and has jurisdiction to review upon appeal, every actual determination made at a general term by the supreme court, in a judgment in an action commenced therein. Code, S 11. This is such an action. It remains only to ascertain whether there has been an actual determination of the case made at the general term. The judgment roll is full and explicit on this point. It says, that the motion for a new trial was made and argued at a general term of the supreme court, and that said court “ordered, adjudged,” &c. This certainly must be held to be a judgment on an actual determination made at a general term. It is true that the language used might imply that the decision of the supreme court was on an original motion, and not on appeal. But the appellant did not enter up the judgment, and cannot, on a motion to dismiss the appeal, be concluded by its language, unless it is so clear against him as to show that the court below had no jurisdiction in the premises. I think we are bound to presume, although it does not affirmatively appear by the record, that the case was regularly at the general term by appeal, and that we cannot go behind the record, which shows an actual determination at general term, to inquire whether there was a judgment at special term from which an appeal had been taken. The motion to effect that object should have been made in the court below, before the final judgment on the merits at general term.

The fifth ground of motion is intended to reach the question lastly discussed, viz: the want of precise and technical language in the entry of the judgment of the general term. If there was a bill of exceptions and an appeal to the general term, then the general term, on such appeal, could grant or refuse a new trial on such bill of exceptions, and from such determination an appeal to this court could be taken.

We are to presume that there was a regular appeal to the general term. At any rate, the respondent cannot, on this motion, have the appeal dismissed for any reason stated in his notice of motion.

The motion must, therefore be denied. But as the return and printed copies of the case must be amended, leave is granted to the appellant to make such amendments, without costs to either party on this motion.

* Compare Maltby o. Green, reported in this series ; Caughey v. Smith, 47 N. Y. 244; and Butler v. Lee, p. 279 of vol. 1 of this series.

Lahens o. Fielden.

to join such parties as defendants, and prescribes what allegations he should assert in his amended complaint, it presents questions which may be reviewed by an appeal to the court of appeals. And this is so, although the order states that the complaint is dismissed for want of prosecution, if the papers show that the want of prosecution consisted simply in the appellant's refusal to proceed by making his original co

plaintiff's defendants. Counsel opposing a motion to dismiss an action for want of prosecution,

in not complyiug with an order to amend previously made, are not to be deemed as consenting to an order of dismissal in such sense as to preclude an appeal, by stating that sooner than comply with the order they would allow the complaint to be dismissed, and present the case on appeal.

I. September, 1862. Motion to dismiss appeal on the case served, upon the ground of irregularity. The facts appear sufficiently in the opinion.

Jeremiah Larocque, for the motion.

William Curtis Noyes, for the plaintiff, opposed.

BY THE COURT.-H. R. SELDEN, J.-From the very imper-fect manner in which the proceedings in this case are presented on the record brought here for review, it is difficult to ascertain the facts necessary to be understood in deciding this motion. The plaintiff's notice of appeal informs us that he appeals from a judgment rendered by the supreme court of the first district, on September 17, 1859, as such judgment was modified by the general term of said court, on May 31, 1800. The return to this court does not show any judgment rendered on November 17, 1859, but only a record, filed on that day, which repeats the judgment pronounced on the previous June 29. If this recital, which appears to be only the conclusion of the record, is to be regarded as the judgment described in the notice of appeal, there is nothing to show when or where, or by whom it was rendered; though it does appear, by a memorandum at the foot of it, to have been "filed September 17, 1859, at 2 P. M.” If we are to exercise the faculty of guessing, and thus arrive at the conclusion that it was made by some judge at some special term in the first district, on or about September 17, 1859, there would still remain the difficulty that it does not

Lahens v. Fielden.

appear ever to have been appealed from, or in any way modified at any general term.

To find grounds for this appeal, it becomes necessary to adopt some other presumption, and none seems more probable than that the appellant intended by his notice to appeal from the judgment pronounced at the special term, on June 27, 1859, (the record of which appears to have been filed on September 17), as such jndgment was modified by the general term, May 31, 1860. We then search the record for the judgment of the general term mentioned in the notice, but no such judgment is found. The record shows no judgment of any term, general or special, rendered on May 31, 1860, or at any time in that year. There is what purports to be an order of June 27, 1859, but when or by whom it was made we have no means of ascertaining. We should presume from its recital of appeals from the “judgment order," as it is called, of June 27, and several other orders, that it was the judgment of the general term upon these appeals, but if it was so, the record fails to show it. So far as that shows, the order may as well have been made by the board of aldermen as by the general term of the supreme court. It is very probable that this was a judgment of the general term, and pronounced on May 31, 1860, but we cannot exercise the jurisdiction of an appellate court, upon probabilities however strong; on the contrary, the record must show with certainty the facts upon which such jurisdiction depends. It follows that, upon the present state of the record, there is nothing which this court can review.

The careless manner in which the case comes here, would justify the unconditional dismissal of the appeal; but as an attempt in good faith seems to have been made to appeal, and the defects pointed out, perhaps merely clerical, are such as under the liberal rules which now prevail may be corrected by amendment (Code, SS 174, 327), and the time for appealing has expired, it is proper to give an opportunity for such correction, if the plaintiff has in fact a right to a review of the judgment below attempted to be appealed from.

Assuming that the order last above mentioned was a decision of the general term of the supreme court, rendered on an appeal from the order of June 27, I am of opinion that the plain

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