Marty v. Ahl

5 Minn. 27 | Minn. | 1860

By the-Court

FuaNDbau, J.

A brief statement of the-facts- in this case is essential to the clear discussion- of the points • involved. A judgment was obtained by the Plaintiffs against the Defendants in the county of "Washington, 1st District',,on. the 21st day of May, 18©9». On the 14th day of August, 1S60¡. more than a year after the entry of the judgment, the Defend-i-ant desiring.to- open the same and be let in to answer,, prepared a set of papers for a motion to that end, and then made; an application to- Judge Yanderburgh, of the 4th District, fox? an order to show cause why the motion should not be heard on i the 25th day of August, 1860, At this point in the proceed- - ings we will examine the-power of Judge Yanderburgh to act the proper course to be taken in such cases, and at the same time consider the action that he did take in the matter.

The application was ex pa/rSer and called for the granting of a mere chamber order in any aspect of the case. If the Defendant meant to make a motion in the regular way on sufficient notice, then all the Judge could have done, would have, been to make an order appointing a time for hearing it at the plaice mentioned in the notice under See. 44 of Ch. 61, Comp. Stats., ¶. 562, If the moving party had desired for any reason •fo have the motion heard on less than the regular notice, his. application should have been for an order to show cause why it should not be heard at a certain, time less than the eight days required by statute, ydiich eider would have been made under See. 17 of Chap. 72, Comp. Stats., p. 627; but. such an order is only to shorten the time, and still leaves it necessaiy that the Court should appoint the place of hearing, jf the rnotiop is not for a regularly appointed, tgrxji. The appointment of a time and place of bearing by tbe Judge, is essential to tbe protection of tbe opposing party, as otherwise be conld be called away by tbe notice of tbe mover without any certainty of finding tbe Judge, who would not have beard of tbe motion, and might be absent.

There can be no doubt that an order to show cause may refer to tbe notice of motion and command tbe party to show cause why tbe motion should not be beard at tbe time and place mentioned therein, it being less than eight days, and by such ,-a method fix the time and place as well as by any other. Tbe better practice, however, is, that tbe order should contain all the requisites of tbe notice, and take tbe place of it altogether; nr that tbe moving papers should contain all tbe facts, grounds of motion, papers to be read, &c., sufficient to put the opposing party in possession of tbe character and object of tbe motion in order that be may prepare to meet it. Tbe great obj ect is to convey tbe information to tbe party, not that it shall be stated in any particular paper served in tbe motion. There can be no doubt that tbe Judge may fix tbe time be will bear a motion, and also appoint tbe place in one and tbe same order, or in two, as be may see fit, and that in either case it is merely the exercise of a chamber power; or in otherwords be acts as Judge, and not as tbe Court in vacation. Gere vs. Weed & Avery, 3 Minn. R. 352; Pulver vs. Grooves, Ib. 359. Tbe Judge bad power to make any order that was necessary on tbe application in any part of tbe State. Comp. Stats. p. 627, as amended by laws of 1860, p. 194-5.

We-will now see what tbe Judge did do on tbe application of tbe Defendant, and probably tbe order be made can best speak for itself; it is as follows :

“ Upon reading tbe affidavit of Jacob Marty, Defendant, and Isaac Van Vleck, Esq., upon motion of J. & C. D. Gil-fillan, Attorneys for Defendant, it is ordered that tbe Plaintiff in this action show cause on tbe 25th day of August, 1860, at 1 o’clock p. M., at tbe Clerk’s office in Stillwater, in said county, before this Court at a special term to be bolden thereof for the purpose of hearing- said motion, and of any motion made to set aside said judgment, why tbe judgment entered in this action shall not be set aside, and tbe Defendant allowed to serve an answer to the complaint therein, said motion to be made upon the ground of no notice of the application for the entry of said judgment, and for the reasons set forth in said affidavits, and the same based upon said affidavits and the records in said case on file, which shall be read on the hearing thereof.”

“By the Court, Chas. E. Yanderburgh, Judge 4th Jud. Dist., Minn., acting for Judge 1st Jud. Dist. August 14th, 1860.”

This order does not perform the office of an ordinary order to show cause under Sec. 17, p. 627, Comp. Statutes, because the time is not shortened for the hearing of the motion, the order giving full ten days notice; the party could have moved his motion for the same day without the order so far as the 'time was concerned. It does, however, appoint the place of hearing, and set a particular day on which the Court will be there to hear it, and in this particular it supplies the requirements of See. 44. ¶. 562, Comp. Stats. It is objected that it states that a special term will be held, when there was no special term there at the time. There is no force in this point at all. The purpose of such an order is to indicate to the attorney that he will find the Judge at a certain place, and time, ready to hear the motion, and nothing more or less ; this is plainly expressed in the order. By what particular name soever the Judge was disposed to designate his visit to the place, neither took from or added to his powers when there, nor was it at all calculated to mislead the opposing party.

It is also objected that as the Judge placed at the foot of the order, the words, “ By the Court,” he thereby made it an order of the Cov/rt as distinguished from a chamber order, and as he signed it out of his District (he then acting as Judge of the 1st,) it is void. It is unnecessaiy to say whether or not a Judge of the District Court can or cannot act as the Court out of his own district; suffice it to say that what is from its subject matter a chamber order, cannot be made an order of the Court by simply calling it so, any more than the Judge could turn his appointment at the Clerk’s office in Stillwater into a' special term by the same process. The classification of orders must always be made upon their subject matter, and not upon the name by which a Judge, attorney or other officer may have designated them. It was a chamber order and could be made nothing else.

The attorney for the Defendant made a mistake in copying the order, and in the copy served he stated the hour of hearing the motion to be 10 a. m. instead of 1 p. m., as in the original. But he also served a regular notice for the same motion, to be heard at the same place at 1 p. m. of the same day. As we have said before, when a motion is brought on for hearing on an order to show cause, no further notice is- necessary if the order contains the requisites of a notice, but the service of a notice could do no possible harm if both were to obtain the same end. The copy served is of course the guide for the opposing attorney, as he has no knowledge of the proceeding except such as he derives from the papers served upon him. When the Plaintiffs’ attorney received the order to show cause for ten o’clock a. m., and the notice for the same motion at 1 p. M. of the same day, he perhaps had the right to regard the order as the only proceeding that he was bound to notice, as that fixed the time and place for the hearing under See. 44, p. 562 of the Compiled Statutes, but he must have been aware from the contents of the papers that the whole matter was designed for one motion, and that the discrepancy in time was the result of a mistake. If he concluded not to respond to the motion referred to in the notice (regarding it as two applications) because in that case no time had been fixed by the Judge, it would have been good practice to have returned the notice with his objections, Smith vs. Mulliken, 2 Minn. R. 319; but it cannot be admitted for a moment that under such circumstances the attorney can attend at the time and place, hear the papers all read, and the motion made, and remain silent. It was his duty, if present, to call the attention of the Court to the error and make his objection; a due regard to fairness in practice demands such a course. It is unnecessary to decide the point whether the Plaintiffs’ counsel might have retained the papers and disregarded the notice entirely by not attending, as he did not pursue that course; it would have been close practice even in that case, considering all the facts. To justify the total disregarding of a motion, or any proceeding by suffering a default to be taken, the 'irregularity must be very patent and substantial. "We think the Judge erred in setting aside the orders made on the 14th of August and the 8th of September, 1860. We will not look into the merits of the motion to open the judgment; the question of the regularity of the proceedings below is all that is involved in the appeal.

We think the order of the Judge of the 1st District which set aside the orders of the 14th August and the 8th September is appealable under subdivision five of Sec. 11, p. 622 of the Comp. Statutes. The Defendant had broken up the judgment and opened the action for litigation by the order of September 8th. When that order was set aside, the judgment was restored to the condition it occupied before the motion of the Defendant; the effect of the order, therefore, of October 24, was to determine the action at once, and prevent such a judgment being entered as would have been had it proceeded to judgment in due course of trial, or in other words it prevented a judgment from which an appeal might be taken by restoring one more than a year old.

The order of October 24 is reversed.