Fry v. Bennett

| The Superior Court of New York City | Apr 15, 1858

Lead Opinion

By the court—Woodruff, Justice.

The court have no

power to extend the time within which an appeal may be taken. The court are not authorized to do indirectly under color of amendment what they may not do directly. A notice of an appeal from an order when actually given in due season, if there be particular defects therein which do not destroy its substantial character, may be amended. And so of an appeal from a judgment.

But where a notice of an appeal from a judgment has been given in all respects perfect and containing nothing more, the court may not allow an amendment, so as to make the appeal also an appeal from an order denying a new trial, after the time for appealing from such order has expired, and so in substance and effect allow a new appeal.

An appeal from a judgment does not bring before the general term for review an order denying a previous motion for a new trial. To bring such an order under review, an appeal from the order is necessary. These conclusions embraced in the opinions given at the special term, on denying the motion upon which the present appeal arises, we now affirm. (Mr. Justice Hoffman, however, dissenting from our conclusion that the time to appeal to the general term cannot be extended.) It is not deemed necessary here to refer to the reasons which were there given, for the purpose of either repeating or reviewing them. But one ground for allowing an amendment in this case, or in the alternative permitting the defendant to file, and serve a notice of appeal nunc pro tunc, is now urged upon our attention, which although the facts relied upon appear on the papers, was not prominently presented at special term, nor discussed in the opinions there given.

It is insisted by the defendant, that the omission to file or serve a notice of appeal, has been waived in such wise that the plaintiff cannot now allege the defect, and that it is, therefore, proper to allow either an amendment or the filing of the notice nunc pro tunc, to the end that the record may conform to the actual condition of the cause before the court; that the general term has actual jurisdiction of the appeal as an appeal from the order denying a new trial, by the appearance of the respondent and arguing the appeal, not only as an appeal from the judgment, but also as an appeal from the order.

Whether, when no appeal has in fact been taken, but the parties nevertheless appear before the general term, present a case purporting to be a case or exceptions on appeal, and argue the matters arising thereon, avowedly and unequivocally as an appeal, they should not be held concluded thereby, we do not think it necessary in this case to decide. There are strong reasons for holding that an appearance on appeal and an actual argument and submission of the questions arising upon the case to the court, without raising the objection that no appeal has been taken, is a submission to the jurisdiction of the general term, and operates to confer jurisdiction as fully as if a formal appeal had been taken by filing and serving written notice thereof. It is, however, not too much to say, that the assertion of jurisdiction by the general term, in the absence of any actual appeal, should proceed upon acts of the respondent unequivocal in their character, and either indicating an intentional assent thereto, or being at least plainly inconsistent with a claim that no such appeal is pending.

The allegations on the part of the defendant here, upon which it is claimed that there has been a waiver of an actual notice of appeal, and a submission to the jurisdiction of the court, are mainly as follows: That there was no argument of the motion for a new trial at the special term, but that there was an understanding and agreement between the attorneys and counsel for both parties that the motion should be denied proforma and the whole matter considered at the general term. That the case made herein and used at the hearing in the general term contained all the evidence in the cause, and was thus prepared with a view to the discussion of all questions which the defendant’s counsel might wish to raise on a motion for a new trial. That the counsel for the parties respectively did insert in their points used on the argument of the appeal from the judgment, grounds for granting a new trial, which could with propriety be only urged on such a motion, and could not properly be considered on an appeal from the judgment only.

In relation to the first of the defendant’s allegations, above in substance recited, the attorney for the plaintiff by his affidavit denies that there was any understanding or agreement of any kind between the parties than what is contained in the order itself, which denies the new trial. That order after reciting the motion and the grounds on which it was moved, denies the motion as “ upon hearing counsel,” and gives to the plaintiff liberty to perfect his judgment. It then provides that if the defendant appeal from the judgment within thirty days, such appeal shall operate as a stay of proceedings on such judgment pending the appeal. This order, if it throws any light upon this subject at all, indicates rather that no intent to pursue the matter as a motion for a new trial was entertained; and the defendant’s attorney states in his affidavits, that the order was prepared by the defendant’s counsel himself. So far as the order suggests anything, it is that an appeal from the judgment only was then contemplated. And in this direct conflict of affidavits, we do not find ourselves called upon to say that it is clearly shown that there was an agreement or understanding, such as is alleged on the one hand and denied on the other.

The case used on the argument of the appeal, no doubt contained all the evidence taken on the trial—that is not denied— no doubt the case as prepared for the purposes of the motion for a new trial, was printed without alteration, for use on the appeal to the general term; but when we recollect that however inconvenient and improper, it is a very common practice with a large portion of the attorneys at this bar, to present cases on appeal from the judgment, in the same form as here exhibited; and more especially, when we observe that there are in this case eighty-two exceptions, to the proper understanding and consideration of many of which, large portions of the testimony were essential, we think no great weight can be given to the circumstance that all the evidence was printed and furnished to the court on the argument of the appeal.

The remaining consideration is, that the counsel presented points on both sides, which could only be properly argued on a motion for a new trial. On the part of the appellant, out of forty-three points presented, three are found of this description. On the part of the respondent one is found, to wit: that the damages are not excessive. But it is to be observed, that in the opening statement of the case as printed on his points, the respondent’s counsel states' explicitly that the cause “ now comes before the court upon a case upon an appeal from the judgment.”

On the other hand, it is quite clear, that the respondent nowhere suggests on his printed points, that the questions whether tne verdict is against evidence, or whether the damages are excessive, were not open to discussion on the appeal. It seems to us upon an examination of the points, in a high degree probable, if not quite clear, that the parties both supposed that all the points presented, might properly be discussed on the appeal then under argument.

But we are not prepared to establish deliberately by precedent, that if on an argument of an appeal from a judgment, a point is discussed without objection, which is not raised thereby, the appeal shall be thereby deemed modified, or that if a respondent’s counsel places on his own points one in answer to the appellant, which is only pertinent to a motion for a new trial, that he thereby consents that the appeal be deemed converted into an appeal from an order denying such a motion. We know that such mistakes, usually founded in an erroneous apprehension of the subject, and sometimes from uncertainty in the mind of counsel, as to what questions the court will feel at liberty to consider on an appeal from the judgment, are of frequent occurrence. Probably not a term has passed since the Code of Procedure was adopted, in which more than one ■ example of this description has not been exhibited. And when the court have had the notice of appeal before them, it has been very common, upon receiving the printed points, to call the attention of counsel to the distinction, and to pass over all points which are not addressed to the exceptions taken on the trial of the cause, or to the judgment rendered.

Upon a review of the affidavits submitted, and an examination of the points used, it seems to us quite probable that, the counsel on the part of the-appellant, intended tq raise by the appeal the question whether the verdict was against evidence and whether the damages were excessive, and hardly less pro? bable that the respondent’s counsel supposed that - those ques>tions might properly be considered on an appeal from the judgement. But it is to be noticed that there was here an actual appeal pending that was an appeal from the judgment* and not an appeal from an- order denying a new trial. The appearance of the respondent was in fact, an appearance to answer to the appeal which had in truth been‘taken ;■ ap: pearance, noticing the appeal for- argument, and appearing in court to argue, and actually arguing the appeal, all these or any of them, neither expressly nor impliedly, admitted that any other appeal in the cause was pending- than an appeal from the judgment, nor gave the court jurisdiction of any other ap-' peal. This is by no means the case above referred to, in which an appearance when no formal appeal had been taken, noticing it for argument, appearing in court and actually and professedly arguing th,e-matter as an appeal, it is suggested might be deemed a waiver of notice of appeal

But in the circumstances of this case, the question- comes down to the naked inquiry whether if a respondent comes into court, with the statement at the outset that the cause comes before the court on an appeal from the judgment, and yet besides discussing numerous exceptions that are properly to be considered, argues a question whether the damages are- excessive or the like, or permits the adverse party to argue among-others, similar questions; he is to be deemed thereby to waive any notice of appeal from the order denying a new trial, and to give the court jurisdiction to reverse that order. We do not. feel at liberty so to hold.

The order appealed from, must be affirmed,

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Dissenting Opinion

Hoffman, Justice, dissenting.

I fully concur in the denial of the motion to dismiss the appeal taken on the 25th of May, 1858, from the order of the 13th of April, 1857, denying a new trial. But the decision of the appeal from the order of special term, made on the day of May, 1858, involves the question whether the court has any power to extend the time for taking an appeal from an order or judgment, or to give liberty to take it after the time prescribed in the Code has expired ?

Upon this question I am compelled to differ from my brethren; and this-is one of the few cases in which a deep rooted opinion upon a point of great and permanent practical consequence, appears to demand the expression of that dissent. I do not consider, and I believe it is not claimed that the opinion expressed in Humphrey agt. Chamberlain, (1 Kernan, 274,) controls this question. The appeal was dismissed because it was from an order not appealable. The question was not raised. The 174th section of the Code was not noticed. The 405 and 332 were alone referred to.

My reasons for this dissent, are embodied in the following propositions. 1. The Code has abolished writs of error, and substituted what is termed an appeal, as the method of reviewing orders and judgments. (§ 323.) I think that the practice upon appeals in equity cases, rather than those upon writs of error in common law actions, is to supply the rule of decision where the Code is silent. (§ 469.) Either this is the doctrine, or it is that when the action is a common law action, the rules upon writs of error shall control, and when it is an equity suit those upon appeals, as formerly known, shall govern.

2. We find one great and important principle prevailing, both as to writs of error and appeals. Writs of error were at the common law matter of absolute right in civil cases, and could be brought at any period, however remote. Appeals by the civil, the ecclesiastical, the admiralty, the law of the court of chancery, and that of the house of lords, were equally of absolute right, and equally unfettered by time. Positive statutes and .positive rules were necessary to restrict the exercise of this right within definite periods, or to impose conditions upon it.

As to writs of error, there was no limitation before the statute of 10 Wm. Ill, c. 14. The preamble to that act recognized the law, “ that ancient judgments were reversible at any time without restriction or limitation.” It provided a remedy by limiting them to twenty years. Our own statute of 1813, (1 R. L. 1813, 134, § 9,) reduced the period to five years. The Eevised Statutes of 1830, abridged the time to two years. (2 R. S. 595, § 21.) In the English act, and'in our own statute of 1830, the exceptions of infancy, coverture and some others, were contained and provided for the period after the disability was removed. (11 Wendell, 526.)

3. In the court of chancery, appeals from a decree of' the master of the rolls, were to be taken within a month by an order of court of 1725. (Beames' Orders, 334, 338.) This order fell into disuse. Appeals of this nature being more strictly rehearings, were taken after a much greater length of time. (1 Merivale, 36; 13 Vesey, 456.) The rule seems to have been that until a decree was enrolled, it was open to a rehearing. (1 Daniell’s Pr. 1347, and cases.)

By the order of the 7th of August, 1852, one of those resulting from the great statutory amendments of the practice, the subject was fully regulated, and the periods for appeals and rehearings prescribed. By the 6th section of the order, the lord chancellor either sitting alone or with the lord justices, or one of them, might whenever the peculiar circumstances of the case appeared to make it just and expedient, enlarge the periods before appointed for a rehearing, appeals or enrolment. (Headlam's Chancery Acts, &c., London, 1853.)

4. Appeals to the house of lords, were regulated by a standing order of March 24th, 1725. No petition of appeal was to be received after five years had expired from the signing and enrolling of the decree, and the end of fourteen days next ensuing such five years, unless the person be an infant, feme covert, non compos, imprisoned or out of the kingdom. Then within five years after the disability should cease. (Stated at length 2 Fowler's Exch. Pr. 246; Palmer's Pr. House of Lords, page .)

An order of the house, made in 1829, reduced the period of appeals to two years, and as to the exceptions, it provided that in no case should an appeal be allowed where the excuse was absence merely, after five years from enrolment. (1 Daniell's Pr. 1357.) An appeal from subsequent orders brought within five years from their date, saved an appeal from the decree, brought after five years had elapsed. Where a decree had not been enrolled, the house of lords acted upon the equity of the statute of William III, and dismissed an appeal which was brought twenty years after decree pronounced, although enrolled within five years. (Edwards agt. Carroll, 5 Pr. P. C 466; Smyth agt. Clay, 6 id. 395, Dublin edition.)

5. Appeals in spiritual causes were regulated by the famous statute of 24 Henry VIII, chapter 12, prohibiting appeals to the See of Rome. From a sentence the appeal was to be taken in fifteen days, and from an interlocutory order within ten. (Statutes at Large, Vol. 2, p. 177; see also Floy on Proctor's Practice, p. 31.)

6. In admiralty I need only refer to Brown's Admiralty Practice, Yol. p. ; to the act of Congress of 1803, chapters 40, 52 and 54; and to Wiscart agt. Dauchy, (3 Dallas, 327.) The principle is found that appeals are of civil law origin, and the limitation to five years was prescribed ftir the tribunals of the United States.

7. Appeals in equity cases were regulated by the act of 1813, (1 R. L. 134, § 9,) adopted into the Revised Statutes of 1830, (2 R. S. 605, §§ 78, 79.) Appeals from final decrees were to be made within two years from enrolment, subject to the same exceptions as to persons under disability, as in cases of writs of error, and appeals from any other order within fifteen days. And the regulation of appeals from a vice-chancellor to the chancellor, was made by the statute. (2 R. S. 178, § 65.)

I deduce from this review two conclusions. One, that all restrictions upon the right of appeal are to be strictly construed ; another and more important, that any relaxation of such restrictions is to be liberally interpreted. By the light of these principles the Code is to be examined. We notice first that the whole doctrine of exceptions by reason of a disability is disregarded. The prescription seems peremptory for all suitors. In the next place as the Code stood in 1848, the provision was only that which we now find in the 173d section, with unimportant variations of language. The new clause of 1849, added the provision which now forms the 174th section. In it we find the direction that the court may in its discretion allow an answer or reply to be made, or other act to he done after the time limited by this act; or by any order enlarge such time, and may also in its discretion and upon such terms as may be just, at any time within one year after notice thereof relieve a party from a judgment order or other proceeding, taken against him through mistake, inadvertence, surprise or excusable neglect.

Thus, then, a judgment may be relieved against within a year for excusable neglect; but the power of revising that judgment under any circumstances whatever after the expiration of thirty days exists nowhere, not even when the appeal is from one judge to other judges of the same court. With the most indulgent provisions for every other imaginable case, this important common law inherent right is bounded by a period very brief in duration, and by a rule most stringent in application. It has been urged, that an appeal is a new action. With respect, I regard this position as clearly indefen sible; some of my reasons are stated in Seely agt. Prichard. But if an appeal from an inferior to a superior tribunal could by possibility be so considered, I am unable to find a shadow of plausibility for treating a review by judges of the same court of the decision of one of them, as of that nature. It is urged that the court might as well assume the power of authorizing the commencement of action after the expiration of the periods fixed in title two of the Code. The answer appears to me to be, that the 174th section cannot, without the wildest latitude of construction, be considered as applying to any act, except such as attend and can be -taken in the progress of a cause after its commencement. It has been insisted, that by just reasoning, such a power would extend to permit exceptions to the ruling of a judge at a trial, to be taken after the trial. The answer seems to me sufficient that the time to do that is not prescribed by the Code. It must from the nature of things be taken at the trial, and so the 264th section declares; but this .is not the prescription of a definite period of days or other times for doing an act contemplated in the 174th section.

It is strongly urged that whatever was comprised in the fresh provision of 1849, it could only be treated as relating to acts jDroper or necessary in a cause before judgment, and that the context appeared to establish this. This perhaps might sanction the exercise of the power when the appeal was to be from an order merely. But it seems to me a better and more comprehensive answer may be given. The provision as to relieving from judgments contemplates grounds of relief distinct from the case as it stands, something extraneous, not a review of the determination on the case as made out in the court below. Besides, the 405th section has provided for such a case, conferring the power even upon a single judge of the court except as to an appeal. I draw an argument from this very section, that the power was left to the court in cases of appeals.

That inconveniences and possibly evils may result from the possession of the power in question, may not be contested. They attend every exercise of a discretionary authority lodged in a court, and yet that authority is indispensable to justice in a multitude of instances. On.the other hand, little experience or little thought is needed to perceive the numerous cases in which the plainest rights will be defeated and the grossest injustice wrought, by the rigid construction of the Code upon this question. I observe in conclusion, that the case here is of an appeal from an order denying a motion for a new trial, and the right of a judge of the court, in court, to extend the time for taking such an appeal. It is the decision on this point that I differ from. My reasoning Would equally support the power in case of a judgment of the special term sought to be appealed from. I say nothing upon the point of an appeal from the general term to the court of appeals.