41 How. Pr. 389 | NY | 1870
The application to vacate the judgment, and for leave to the defendant to answer the complaint, was addressed to the discretion of the court below, and, whether
The fact that the court, at special term, granted the relief asked for, and the court at general term reversed the order made at special term, does not bring the order within the class of orders reviewable in this court (New York Ice Company agt. Northwestern Ins. Co., 23 N. Y., 357).
The statute regulating the jurisdiction of this court, does not authorize the review of orders of the supreme court, arising upon interlocutory proceedings, or upon any question of practice in an action involving any questions of discretion (Code, supra).
Applications of this character for relief against judgments, or other j udicial proceedings, either as matters of grace and favor, or for irregularity, are peculiarly addressed to the discretion of the court, and the intention of the legislature, as expressed, is to make the disposition of all questions of practice of that kind, by the court of original jurisdiction, final.
It would not be wise, or for the public good, to suffer all questions of practice, especially those calling for the exercise of discretion, that may arise in the process of litigation, to be taken by appeal to the court of last resort, delaying and retarding the final determination of the matters really in dispute, increasing the expense of litigation, and obstructing the legitimate business of all the courts.
The matters urged here, as bringing this order within the class of appealable orders, do not appear by the appeal papers.
The claim that the respondent here, the appellant in the court below, had, before the argument of the appeal in that court, waived or abandoned the appeal, by acting under and taking the benefit of the order appealed from, even if it could avail to give jurisdiction to this court, cannot be considered upon this appeal.
The record upon the appeal, in both courts, properly consists of the papers upon which the court acted in granting the original order; the case then made is that which is to be reviewed, and, as the alleged waiver or abandonment of the appeal depends upon acts dehors the record, they could only be brought to the attention of the court on affidavits, and on a motion to dismiss the appeal, or for relief against it.
So far as appears by the record, there was no fact before the general term of the supreme court upon which that court was called upon to decide, or could have decided whether the plaintiff was estopped from appealing or had waived his appeal after it was brought.
The affidavit printed with the papers, purporting to have been made on the 14th of January, 1870, long after the appeal was brought, and a few days before the decision, formed no part of the record in the court below, and formed no part of the record sent here ; and the counsel for the present appellant is entirely right in his claim, that the affidavit has no place before this court.
But, if it could be considered by us, it would not vary the result.
It would be still, for the supreme court to decide, at least, in the first instance, upon a proper application or presentation of the facts, whether the appear was properly brought and whether the plaintiff was in a situation to prosecute it. A like difficulty is in the way of considering the other objection taken by the appellant, that the appeal in the supreme court was not heard in the proper district, or by a general term which should have heard it.
This is a question affecting the regularity of the proceedings in the court below, and a question of practice, and this objection, or any objection that could have been taken,
If there was no appearance, and the hearing and decision of the general term of that district was irregular, as is claimed, the remedy is by motion for relief in that court, and not by appeal, and, it there was an appearance, as is conceded, it was a waiver of the irregularity.
If the objections taken were clearly before this court, it is at least doubtful whether they could avail the defendant.
In the New York Ice Co. agt. N. W. Ins. Co., (supra,) this court held, that the order of the general term, reversing an order of the special term, was not appealable, although the statute gave no appeal to the general term. And if an order made, upon an appeal not authorized by law, was not reviewable, it seems that an order upon an appeal heard irregularly in a wrong district, and after acts by the appellant, which the court might think, if they were proved, and not excused or explained, would operate as a waiver of the appeal, was not the subject of an appeal to this court, if not appealable for any other reason.
It is the character of the order, and not the history of ¿he proceedings, upon or following it, that determines whether it is or is not appealable.
But, without considering this question further, for the reasons before stated, the appeal should be dismissed, with costs.