« ΠροηγούμενηΣυνέχεια »
that city,' or in a justice's court of any of the cities of this State.
The amendment is the addition of the parts printed in italic, and the omission where the asterisk is placed, of the words “or the municipal court of the city of Brooklyn."
In addition to the jurisdiction conferred by this section, this court has jurisdiction of all cases pending in the late court for the correction of errors on the first Monday of July 1817, and on that day transferred to this court by the constitution, and now remaining undetermined. (Laws of 1847, p. 322, s. 12.) See Section 460 of this. code, and note.
By this section, the court has authority to review, only actual determinations of the inferior court, that is, questions upon which the inferior court has actually passed, per Allen, J.
, Raynor v. Clark, 3 Code Rep. 230, 231, 7 Barb. S. C. R. 581, and only determinations " hereafter made," which means after the code took effect, per Bronson, J., in Rice v. Floyd, 1 Code Rep. 112, 3 Pr. R. 366, 368.
The words in this section, brought there from another court,” have been held to inclade suits pending in the late court of chancery, on the first Monday of July, 1847, and transferred to the supreme court, by force of the constitution, (ART. XIV. s. 5.) where the decree was made after the code took effect, and that suits transferred might well be considered as suits brought. Farmer's Loan & Trust Co. v. Carroll, 4 Pr. R. 211, 212, 2 Code R. 138.2 Coms. 566.
The right to review on appeal to the court of appeals a final order, judgment, or decree, made prior to July, 1848, as also the time and manner of prosecuting the appeal, depend on the old law. Mayor of New York v. Schermerhorn, 1 Code Rep. 100. '3 Pr. R. 334. Coms. 423.
But when such order, &c., 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. Ibid-9. Selden v. Vermilya, 1 Code Rep. 110. 3 Pr. k. 338. 1 Coms. 534.
This section 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. i Code Rep. 111. 1 Coms. 610, and see also, Grover v. Coon, 3 Pr. R. 341. 1 Code Rep. 96. Selden v. V'ermilya, 3 Pr. R. 342. 1 Code Rep. 110. Anon. 1 Code Rep. 101 ; 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, the court had anthority to decide such appeal after the code took effect. Butler v. Miller 3 Pr. R. 339.' 1 Code Rep. 110.:
It has been decided that po 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 irregu... larity 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. Douglas, 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 io 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. Selden v. Vermilya, 1 Code Rep. 110. 3 Pr. R. 338. i Coms. 534.
From the verdict of a jury upon a question of fact, upon the trial of which there is a on as to the credibility of a witness by which it is sought to be proved. Rice v. Floyd, 4 Pr. R. 27. i Čoms. 608. 1 Code Rep. 112.
From an order made upon a bill of exceptions, under the act of December, 1847, where the order was made after the 1st of July, 1848 ; although the suit may have been commenced prior to that time. Tilley vs. Phillips, 1 Code Rep. 111. 3 Pr. R. 364. 1 Coms. 610.
From a final judgment order or decree made in a cause before 1st of July, 1948, except by writ of error under the old law. Rice v. Floyd, 1 Code Rep. 112. 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 Coins. 228. Mayor of New York v. Schermerhorn, 1 Code Rep. 109. 3 Pr. R. 334. 1 Coms, 423.
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 tria). 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,” 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. 18.
From an order made at the general term of the supreme court, comfirming 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 Come. 341.
From a decision at the circuit ou a case. So held where a caso 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.
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.
In an action originally commenced in a court of a justice of the peace, a writ of error from the judgineat in such action was pending in the supreme court on the Ist day of July, 1848. On the 20th of July, 1818, the supreme court after argument, affirmed the judgment. An appeal from such judgment of affirmance was afterwards taken to the court of appeals, and on motion to dismiss such appeal, the court, Bronson, Chief Justice, said, -The writ of error was pending in the supreme court on July 1, 1848, and was, we think, a suit within the meaniug of the statute. The judgment of affirmance was subsequent to the first of July, 1848, and as the action was originally commenced in a court of a justice of peace, there was no right of appeal. Grover v. Coon, 3 Pr. R. 341. 1 Code Rep. 96. i Coms. 536.
We see no force in the objection that the statute is unconstitutional, Ib. See note to section 303 of this code.
It has been held, however, that where the supreme court on appeal reverses the judgment or decree of a subordinate court, an appeal would lie, 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 appeal would lie to the court of appeals. Messerve v. Sutton, 3 Code Rep. 198. 3 Coas. 546.
And that an appeal would lie from a decree at general term of the supreme court reserving no questions, and nothing to be done but to compute the amount due, aster the referee's report of the amount duo had been confirined. Swarthout v. Curtis, 3 Code Rep. 215. 5 Pr. R. 198.
§ 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.
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, asterwards alluded to as being incorrectly roported 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, ou 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 conrt below. It is a mistake to suppose the court held otherwise iu McFarlan v. Watson.
Alter 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.
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 under. taking, 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 be 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 plaint ff appealed to the court of appeals, but the bill of exceptions was alone relarned 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 jurisdiction of the cause, and a motion in such a case for an amendment of the judgment, should be made in the court below. Fraser v. Western, 3 Pr. R. 235. Martin v. Wilson, 1 Coms. 210, but the court does not lose jurisdiction until the romittitur is actually filed, as until that be done, the court can order the remittitur to be sent back so as to restore jurisdiction. Burckle v. Luce, 3 Pr. R. 236. See also, Dresser v. Brooks, 2 Code Rep. 130, 4 Pr. R. 207.
After an action has been remitted to the court below, and the remittitur filed, the court below will not, and caunot, entertain a motion to remit the remittitur to the appellate court, in order that a motion may there be made to amend alleged er. rors of that court. Selden v. Vermilyn, 9 Leg. Obs. 83.
For the form of the remittitur and manner of proceeding, where a decree or order is affirmed, or reversed by default, see, Rules 16 and 17 of court of appeals rules, io appendix.
$13. (13.) (Amended.)—Terms.—There shall be four terms of the court of appeals in each year, to be held at the capitol in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the third Tuesday of September, and continued for as long a period as the public interests may require.
Preference of Causes.—Additional terms shall be appointed and held at the same place by the court when the public interest requires it. The court may, by general rules, provide what causes shall bave a preference on the calendar.
The section for which this is substituted, was as follows:
" There shall be at least five terms of the court of appeals in each year, to be held at such time and place as the court may appoint, and continued for as long a period as the public interests may require ; additional terms shall be appointed and held by the court when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar.”
By the 13th rule, criminal causes are to have a preference, and may be moved on behalf of the people out of their order on the calendar. See court of appeals rules in appendix.
This section goes into effect 1 Jan'y, 1852. § 14. (14.] (Amended.)— Judgment. The concurrence of five judges is necessary to pronounce a judgment. If five do not concur, the case must be re-heard.
But no more than two re-hearings shall be had, and if, on the second re-hearing, five judges do not concur, the judgment shall be affirmed.
The section, before amendment, read as follows:
« The concurrence of five judges shall be necessary to pronounce a judgment. If five do not concur, the judgment or order appealed from shall be affirmed, unless the court order a re-hearing."
There was a doubt entertained whether this section, as it stood prior to amendment, was constitutional; but in Mason v. Jones (3 Coms. 375, 3 Code Rep. 164,) the court of appeals said, we "see no ground for saying the 14th section (of the code of 1849], is unconstitutional. It does no more than restore the common law as it had been previously understood and acted on in this State." By the former practice, upon an equal division of the court, the judgment below was affirmed; but it is well settled that such an affirmance merely determined the particular case, and left tho questions involved in it open for consideration in any future case in which they might arise. Bridge v. Johnson, 5 Wend. 342. People v. Mayor fc. of New York City, 25 Wend. 252. In the case lastly cited, it was also decided that in cases where the court are equally divided, a re-hearing cannot, in the absence of a statutory authority, be allowed; and the same was held in the supreme court of the United States. See Martin v. Hunter's Lessee, 1 Wheat. 355.
Where judgment is pronounced in open court, holden by eight judges, without any dissent at the time, neither party can go behind such public act, and attack the judgment on the ground of what may have taken place among the judges in their private consultations. Mason v. Jones, 3 Coms. 375, 3 Code Rep. 164. See further, Oakley V. Aspinwall, 3 Coms 547.
15. Sheriff to provide rooms. If at a term of the court of appeals, proper and convenient rooms, both for the consultation of the judges and the holding of the court, with furniture, attendants, fuel, lights and stationery, suitable and sufficient for the transaction of its business, be not provided for it, in the place where by law the court may be held, the court may order the sheriff of the county to make such provision, and the expense incurred by him in carrying the order into effect, shall be a county charge.
$ 16. (Amended.)—Court where held.—The court of appeals may be held in other buildings than those designated by law as places for holding courts, and at a different place in 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 is the omission at the point where an 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 towo where it is appointed to be held, to any other city or town,” are omitted. And see, as to the terms of this