7 Paige Ch. 108 | New York Court of Chancery | 1838
The court for the correction of errors having in fact modified or altered then’ decree, while the remititurs were in transitu and before they had been actually received and acted upon by this court, the appellate court had not lost its jurisdiction of the cause. And although no blame rests upon the solicitor of Rogers for filing such remittiturs before he had notice of the subsequent act of the appellate court, the modification of the decree by that court must be considered as a recall of the remititturs as made out by the clerk. They must therefore be taken off the files of this court and returned to him, so that they may be amended by inserting therein the decree of the appellate court as finally settled. And when the corrected remittiturs are brought into this court they must be presented to the chancellor, so that a proper order may be made thereon to carry into effect the decree of the appellate court; and that this court may make the necessary order for the purpose of giving to the complainants an opportunity to serve their papers and to give notice of a motion for further directions as to the custody of the fund, in case it shall be found to be unsafe, as contemplated by the amendment of the decree, if the complainants shall think proper to make such an application. In the meantime, and until the decree of the appellate court, as finally settled there, is remitted by the clerk in the usual form, all proceedings by either party founded upon the original remittiturs, or in relation to the subject matter of the appeals to the court for the correction of errors, are to be stayed before the vice chancellor; and the order remitting the proceedings to him is to be suspended.
There does not appear to be any good reason why the practice in the two courts should be different, although this court is always open and the regular terms of the supreme court are only held quarterly; as I presume, as a matter of form, the judgment is entered upon the record of the supreme court as of some regular term thereof subsequent to the decision in the court for the correction of errors; and a
As the solicitor for N. Rogers was not informed of the subsequent amendments of the decree by the court, after the remittiturs had been delivered to him by the clerk, and had therefore no reason to suppose that the filing of such remittiturs would be irregular, and as the practice proper to be pursued in such a case was not then settled, there is no ground for charging the defendant with the costs of this application. But the complainants’ costs upon the motion are to be taxed as a part of their costs in the cause, if they succeed in obtaining a decree which entitles them to their general costs, either payable out of the fund in the hands of the executor of Gracie or otherwise.