4 Abb. Pr. 11 | N.Y. Sup. Ct. | 1856
—This is a motion to set aside an inquest and all subsequent proceedings, including a judgment and execution, on various grounds. The action was ejectment, and was tried at the Westchester Circuit in June, 1856. The cause was called in its order on the calendar, and the defendant having made no affidavit of merits, and not appearing, the court proceeded to try
It is alleged that this judgment was erroneous, because the action was to recover lands of which the plaintiff, Sarah H. Burger, was averred and proved to be seized to her separate use, and therefore her husband should not have been joined in the action. Whether this was error or not, and if it were, how it should have been pointed out and taken advantage of, are questions which it is unnecessary to decide upon this motion. It is evidently not such an irregularity as can be reason for setting aside the inquest and judgment.
Nor is the supposed variance between the complaint and judgment, and the proof, in respect to a right of way secured by the deed upon which the plaintiffs seem to have recovered and which is supposed to be cut off by the judgment, an irregularity. If there has been an error here, it can only be available to the defendant on appeal.
The same remark applies to the objection, that the judge at the Circuit improperly permitted an amendment of the complaint by which, as the defendant alleges, the plaintiffs were allowed to recover more lands than they claimed in bringing their action. I cannot, at special term, review the action and decision of a judge at the Circuit on such a point.
If these questions can be raised at all, it must be on appeal. The counsel who argued this motion for the defendant urged, that it was by the neglect or misconduct of the attorney then employed by his client that the cause was tried as an inquest and without the appearance of the defendant, and that in consequence of this many if not all of these questions are no longer open. How far exceptions to the finding of the court upon a trial when the party excepting did not appear may extend, and whether- all the objections suggested at this argument can be raised by such exceptions, may perhaps be questions of some doubt. Fortunately for the defendant in such an action as the present, the statute gives him the right to a new trial upon the payment of the costs of the action; which, in all, cannot very greatly exceed \/hat he would, as a matter of course, be subjected to if his present application were granted as a matter of favor.
But even if this were not so, I cannot see any reason in the affidavits for relieving the party from the consequences of. the
The only irregularity which it is necessary to notice consisted in the want of a written decision by the court or judge who tried the case. Ho decision signed by the judge has ever been filed ; but at the time of the trial the decision was announced orally, and by the order of the judge the following entry was made in the clerk’s minutes of the Circuit under the title of the cause—“ Ordered that the plaintiff amend his complaint to correspond with the map and diagram proved by Cornell, the witness ; and thereupon judgment be given for the plaintiff that he recover the lands so to be described in the complaint, with costs.” This seems to have been all that was ever done by or under the direction of the court. At a subsequent day the entry in his rough minutes was reduced to somewhat more of form by the clerk, and an entry made reciting that the cause was called and the defendant did not appear, and after hearing the proofs on an inquest without a jury, the judge ordered and adjudged that the complaint be amended, and that the plaintiffs have judgment and recover the lands described in the amended complaint.
I do not think this is a compliance with section 267 of the Code. It is unnecessary to decide whether the decision “in writing,” which this section directs, must be signed by the judge. Undoubtedly it is the more correct and safer practice that it
The question then arises, whether after a trial by the court its decision must be filed within twenty days, or its power over the cause be lost, and a re-trial necessarily be had. This cannot be so. The court does not lose its jurisdiction of the action, nor its power to render judgment. That cannot be taken away after a trial, unless by explicit words of the statute. The object of this section was to expedite and render certain the decision of causes, by setting a time for the judge within which he should be enjoined by the law to determine the causes tried before him. But if an omission or accidental failure to render or file a decision within the precise number of days named in the statute, involved the risk and delay, and expense of a re-trial, the effect of the statute upon the whole would be more vexatious than beneficial to suitors. I think this section ought to be regarded as merely directory; and while a great and unreasonable delay on the part of a judge in deciding a cause, would furnish a reason for applying to the court for redress, and this section would
The irregularity in the present case affects only the judgment; the inquest and trial were regular, and there is no reason shown for setting them aside. But the judgment and all subsequent proceedings must be set aside; and the plaintiffs must, within ten days after notice of the order to be entered on this motion, file a proper decision by the judge who tried this cause.
Such decision, when filed, shall be of the same effect as if made and filed at the trial, and the defendant may except to it in the same manner. If such decision is not filed within that time, the inquest and all subsequent proceedings will be set aside. Neither party to have costs of this motion.