Ownbey v. Morgan

30 Del. 297 | Del. | 1917

Lead Opinion

Curtis, Ch.,

after stating the facts, delivered the opinion of the court:

The motions above referred to have been argued on briefs submitted, and the decision of them has no bearing on the merits of the questions raised by the writ of error.

[1-4] First, as to additional security. The motion for additional security is that the plaintiff in error be required to give to the defendants in error a bond for at least two hundred thousand dollars, in place of the bond for six thousand dollars, claiming that by the Constitution the plaintiff in error in order to stay proceedings below must give sufficient security to pay the judgment recovered below by the defendant in error which was two hundred thousand one hundred and sixty-eight dollars and fifty-seven cents, as the condemnation money.

By the Constitution a plaintiff in error or appellant, in order to stay proceedings in the court below pending the hearing of the case in the appellate tribunal must give sufficient security that he will (1) prosecute his writ of error or appeal, and if he fails in changing the decision of the court below, (2) will pay the condemnation money, if there be condemnation, or (3) if there be no condemnation money will otherwise abide the decree appealed from, or abide the judgment claimed to be erroneous.

What is condemnation money is clear. It is the amount of the judgment below where there is a general judgment finding that the defendant must pay the plaintiff a sum of money, which is collectible from any property of the defendant that can be reached by the process of the law, whether the sum so found to be due is a debt or damages. Where the defendant below is not condemned by the judgment of the court below to pay money to the plaintiff below, as where there was a decree for specific performance, or a judgment in an ejectment suit, then the duty of the unsuccessful appellant is to perform the duty imposed by the decree or judgment below, and to abide thereby. If it was a decree for specific performance, then to abide is to do whatever was commanded, and for failure to do so the remedy was on the supersedeas bond, in addition to any other relief that the court below could give to secure enforcement of its decree. To meet this large class of remedies where there was no condemnation money the court said that the appellant must • give sufficient security to abide, i. e., perform, the decree or judgment below.

The constitutional provision seems to me to be a very simple recognition by the makers of the Constitution of the variety of the relief granted to suitors, and that suitable language was used to distinguish between them in providing for protection pending appeal.

What is “sufficient security” within the provisions of the Constitution? That depends on the nature of the cause and the judgment or decree there rendered. If it is a general judgment for a sum of money, whether recovered as a debt or damages, to obtain which from the defendant the plaintiff may seize and sell all of the property of the defendant, then clearly the only security which will be sufficient to protect the plaintiff below pending the appeal will be a bond at least equal to the amount of the judgment and interest, and there must be such surety on the bond as will enable the plaintiff below to look entirely to the surety for protection. This is all clear.

But there are a great variety of reviewable adjudications, other than money judgments. There are appeals from decrees in chancery, requiring specific performance of a contract, injunctions preventive and mandatory, and the like where there is no direction to pay money, but to do or refrain from doing some act. There are replevin suits where the judgment is for a return of the property; ejectment suits to recover possession of land, where there is no money judgment and no order to pay money at all. There are criminal cases, mandamus, quo warranto, and other remedies afforded for legal rights where there is no order to pay money. In all of these cases what is the “sufficient security” which the party successful below needs pending the suspension of his rights to have the thing which the court below said he was entitled to have? There being no condemnation money in any of these cases, some other method of determining the sufficiency of security than a consideration of an amount of money which the court below awarded.

The rule of the Supreme Court was evidently intended to provide a guide to those who have the duty of fixing in particular cases what security would be sufficient. So the cases are arranged in the rule about as they are in the Constitution, viz. in two general classes; one where there was a judgment for the recovery of money, and those where there was not. It distinguishes, for instance, between a judgment on one hand and replevin or real actions. The rule does not violate the Constitution even if it does not require that every supersedeas bond shall be conditioned to pay condemnation money, for there are, as explained above, cases where there is no condemnation money. By the rule the Supreme Court has done no more than suggest to themselves principles applicable in determining what in each of the several classes of cases mentioned is sufficient security.

What is sufficient security for the plaintiffs below in the case at bar depends on the character of the right enforced and the relief given. They had an attachment of certain shares of stock which they had a right to sell in order to realize a sum of money found by the court below to be due them. They had no right to proceed against any other property to collect payment. They had a lien on, or right in, that particular property which could not be dislodged in any way pending the appeal, and if the defendant below failed in his appeal their rights as against the property would be the same then as at the time they obtained judgment. To give the plaintiffs below sufficient security did not require that they be indemnified by a bond, the amount of which was based on the amount of money which they were entitled to recover by a sale of those shares of stock only, and with no right to reach any other property for that purpose, i. e., they were not entitled to a bond based on the amount of the judgment treating it as condemnation money. Yet such is the contention of the defendants in error in the motion for further security. As pointed out by counsel for the plaintiff in error, this would give the plaintiffs below more than they obtained by their attachment in the court below.

It is not claimed that since the bond was given there has been a change of circumstances which has diminished the security already given, nor indeed was any other matter urged except that the rule of court permitting security to be given for a less sum than that indicated by the sum of money awarded below violated the Constitution of the State.

The court is unanimously of the opinion that, for the reasons above stated, the rule of court is in harmony with the Constitution, and that the motion for further security should be denied.

[5] Secondly, the motion to strike out part of the matter in the transcript. The transcript contains all of the entries, written motions, decisions, orders and judgments which occurred in the course of the cause below as hereinabove referred to. The defendant in the court below was there denied a right to appear, plead and defend in the action because he did not give security as required by the statute, and the plaintiffs below recovered a judgment which entitled them to an order for the sale of the' property attached. At several steps in the cause the defendant attempted to secure the rights to appear, plead and defend, each of which steps led up to the final decision of the cause, the entry of judgment, and it is not necessary at this time to consider the steps separately.

A writ of error cannot be taken until after final judgment. Finality of decision is essential to a right of review as a rule of convenience, to avoid delays from separate appeals of each of the steps in the cause as they occur. Therefore, the right to review these several steps is held in abeyance until the cause has reached a stage when all of the appealable steps can be reviewed in a single appeal involving the whole cause.

This general principle of appellate jurisdiction is so fundamental that it hardly needs the support of citation of authorities. But the following may be cited from states where it has been declared to be the law independent of statute: Steenrod v. Wheeling, etc., Co., 25 W. Va. 133; Lloyd v. Kyle, 26 W. Va. 534; Allerton v. Eldridge, 56 Iowa, 709, 10 N. W. 252, and citing other cases in Iowa; White v. Atchison, etc., Co., 74 Kan. 778, 88 Pac. 54, 11 Ann. Cas. 550; Baker v. Baker, 10 Cal. 527; Nelson v. Brown, 59 Vt. 600, 10 Atl. 721; Comins v. Turner, etc., Co., 140 Mass. 146, 3 N. E. 304; Morse v. Rankin, 51 Conn. 326; Emry v. Parker, 111 N. C. 261, 16 S. E. 236; and many other cases cited in notes to 2 Cyc. 586, 2 Ency. of Pleading & Practice, 90; and 2 Standard Ency. of Procedure, 170. In 3 Corpus Juris, § 256, p. 432, and 4 Corpus Juris, § 2582, p. 680, there is a multitude of citations.

[6] The judgment entered below in this case is, of course, a final one. A decision is final in this sense when the successful party has obtained his rights either by the direct operation of the decree itself, or by means of proceedings of a ministerial character to enforce execution of it. As soon as the final judgment is entered, the unsuccessful party may then have reviewed all the successive steps in the cause which are reviewable by the appellate tribunal to which the whole record of the cause comes.

[7, 8] Consider what is reviewable, independent of the procedure for bringing the issues before the reviewing court. By the Constitution the Supreme Court has jurisdiction inter alia to issue writs of error to the Superior Court and to determine finally all matters' in error in the judgments and proceedings of said Superior Court. Article 4, § 12, par. 1. This language is' very broad.

There are few decisions in this state bearing materially on what is reviewable. In Easton v. Jones, 1 Har. 433, note (a), p. 436, Chief Justice Harrington in the Superior Court considered that the craving by .the defendant of oyer of a deed of which the plaintiff has made a proffert was “a kind of plea and may be counterpleaded, and the grant or refusal of oyer is a judgment of the court,” and if oyer be refused a writ of error will lie to such refusal. By this the court meant that, when the record came up after the final judgment, the refusal of oyer was reviewable.

The Superior Court, after refusing judgment for the plaintiff notwithstanding an affidavit of demand, or after granting a judgment for the plaintiff notwithstanding an affidavit of defense, has said that an exception will not lie thereto, or that a writ of error will not lie thereto. In Valley Paper Co. v. Smalley, 2 Marv. 289, 295, 43 Atl. 176, the power to grant or deny such interlocutory motion was considered discretionary with the court. The court in Ridings v. McMenamin, 1 Pennewill, 15, 39 Atl. 463, refused to allow to the plaintiff an exception to its ruling denying a motion for judgment notwithstanding an affidavit of defense as not being a final judgment, the reason of the court being wrong, but the decision being right for a writ of error was not then opportune. No reason was given in Montello v. Pullman, etc., Co., 4 Pennewill. 90, 54 Atl. 687, for refusing to a plaintiff an exception to a ruling by which a defendant was allowed to appear specially in a mechanics’ lien case. The ruling could not have been reviewed at all until after the final judgment, and under some circumstances it may be discretionary with the court to allow a special appearance. A refusal of a motion for nonsuit is not reviewable. May v. Curry, 4 Har. 265 (Court of Errors and Appeals).

The case of Whitaker v. Parker, 2 Har. 413, was a suit on the bond of a collector of taxes, and there was a judgment against him and four sureties. The sureties obtained a rule to show cause why the judgment should not be set aside on the ground that it had been entered more than three years after the date of the bond. At the hearing of the rule, it was discharged by consent, the treasurer having agreed not to levy on the property of the sureties. The principal in the judgment took out a writ of error. The Court of Errors and Appeals found no error either in the judgment or in the order discharging the rule. It then said this with respect to the order discharging the rule:

“But there is another question, whether a writ of error lies on the decision of such a side bar motion, and of which we have doubts.”

Clearly all that was meant was that the principal in the judgment could not object to the agreement of the plaintiff in the judgment not to levy on property of the sureties, as it did not operate as a release, and therefore the court called it a “side bar” motion, and did not intend to give any wider meaning even to the quere, and the words were no more than a query.

In Tatem v. Gilpin et al., 1 Del. Ch. 13, 21, the interlocutory order for an injunction pendente lite was held immediately appealable under the Constitution then in force, becauseit changed the physical conditions for the defendant, the right of the defendant to Rood land of the complainant by a dam beingtheissuesinthecause.

From this review it will be seen that except in the case of Easton v. Jones, supra, there is no help to be had from the decisions here as to what of the intermediate steps and occurrences in the progress of the cause are reviewable after final judgment. The cited case supports the claim of the plaintiff in error here of a right to have reviewed here the refusal of the court below to appear generally and plead to the action, for that refusal by preventing the defendant from proving his defense of non assumpsit, was more far-reaching than a refusal to permit a defendant to inspect in advance of pleading to the action a deed which the plaintiff declared to be in his possession. If the latter is not discretionary, the former certainly is not.

There are certain statutes which define what are not reviewable, and what proceedings are amendable. In chapter 134 of the Revised Code, p. 1978, §§ 2, 3, 4, and 5, the matters of error which will not lead to a reversal of the judgment below are set out, such as amendable defects; variance between the writ and the declaration; error in the form of the action; death of a party between the verdict and judgment. But they have no direct bearing on the question here raised.

Aside from the reported cases in this state, the general principle is that interlocutory decisions of matters discretionary with the court are not reviewable. A granting or denying of a continuance is a typical example of the exercise of discretion.

Here the defendant claimed the right to appear and defend the action without the entry of special bail. For this purpose he entered a general appearance and filed pleas. These were stricken out by the court because special bail had not been given. Other steps were taken by the defendant to enable him to defend the action on its merits, but it is not necessary to refer to them in detail in considering this point, because the striking off of the general appearance and pleas of the defendant deprived him of opportunity to defend the action on the merits and allowed the plaintiff to obtain a final judgment, through the successive proceedings of a judgment by default and inquisition without a contest on the merits. Therefore, the order striking off the appearance and pleas determined the case so far as the defendant was concerned, though the plaintiff necessarily went on to obtain final decision of his rights. Such an order is reviewable in this, the appellate tribunal, which has been given jurisdiction to determine all errors in the judgments and proceedings of the court below. Brumley v. Jessup & Moore Paper Co., 3 Boyce 544, 90 Atl. 83.

If any further authority is needed for the point, the following are found in the brief of the plaintiff in error:

In Fuller v. Claflin, 93 U. S. 14, 23 L. Ed. 785, an order striking out an answer was held to be appealable, as distinct from a refusal to' strike out an answer. Obviously the former is not a mere procedure in the cause. “It is the ending of the cause, leaving the action undefended and with the right to immediate judgment.”, A similar consequence followed the denial of the plaintiff in error here to appear and answer.

In Camden, etc., Co., v. Stuart, 21 N. J. Eq. 484, an order striking out of a bill in equity matter on the ground of impertinence was held reviewable, for, said the court, “if relevant then unquestionably the striking out was a wrong affecting the rights of the appellant involved in the suit.”

In Henry v. Jeans, 48 Ohio St. 443, 28 N. E. 672, the court held to be reviewable an order striking out and suppressing an answer:

"When the plaintiff in error was made party defendant, with leave to answer, he acquired substantial rights—the right of a litigant in the case— of which he was effectually deprived when his answer was suppressed. By the order striking his answer from the files, his right to try the issues it made was directly affected, and as to him, at least for the time being, the order determined the action and prevented the judgment he sought.”

Inasmuch as the right to appear and defend without entry of special bail is the issue, and the refusal of the right is determinate of the cause so far as the defendant was concerned, the striking off of the appearance and the plea setting up the defense cannot prevent this court from reviewing that determinative action. Any other view would be to make a mockery of judicial proceedings, and outrage justice and right. By no stretch of the imagination can such a judicial order be considered discretionary, or within any of the classes of judicial decisions and actions which are not reviewable. It is, therefore, reviewable after the final judgment has been entered.

Furthermore, there are no cases which have been cited which controvert the view here taken.

[9] In this connection it is unimportant to consider whether the action of the court below was rightly in the record proper, or was brought here by means of the bill of exceptions. Cases elsewhere which hold that it should be in one or the other of them are, for the purpose of considering reviewability, uninstructive and indecisive, for they relate to the method of bringing into the appellate court the questions that are reviewable. The method proper for the purpose in this state will be considered hereinafter.

It is claimed by the defendant in error, in substance, that the various entries, motions, answers to motions, papers and decisions of the court respecting the right of the defendant below to appear and defend have no place in the record, and if they can be brought at all before this court for review it must be done by a bill of exceptions; that a bill of exceptions being unknown to the common law, existed only by statute; that the statute of Delaware related only to matters which occurred at the trial and not to matters occurring in the cause prior thereto, and so did not justify the incorporation into a bill of exceptions any matter relating to the right of the defendant to appear and defend; and further that the existence of the Delaware statute supplanted the ancient more liberal Statute of Westminister. All these points may be conceded, though no opinion is, or need be, expressed on them, as general propositions.

We find that this court has by its rules provided for the incorporation into the record of this and every other cause every matter of proceeding reviewable here and which is not by virtue of the statute properly placed in the bill of exceptions. This is Rule 12, which is one of long standing, being one of the rules of the Court of Errors and Appeals, and has been and is one of those of the Supreme Court, substituted for the earlier court in name by the last constitutional change.

In the absence of statutory regulation the appellate tribunal may by general rules fix a procedure for bringing to it matter reviewable by it. There is no statute here, except the statute defining the scope and purpose of a bill of exceptions. Sections 4438 and 4439 of the Revised Code of 1915. On the other hand there is a statute giving widest powers to this court “to make rules and orders for the trial, hearing and determination of causes and proceedings in said court.” Section 3707 of the Revised Code of 1915.

When a writ of error is sued out a plaintiff in error files his assignments of error, and the writ goes to the court below to send up the record so that the reviewable matters so pointed out as error in the assignments of error may be adjudicated. In the absence of a rule or statute and at common law the bare record, the writ, pleadings, verdict and judgment, were sent up. By the English statute other matters, such as errors in the charge of the court to the jury, could be sent up. In Delaware we have the statute as to the bill of exceptions, the scope and purpose of which is, in brief, to bring up the spoken words of the judge on the, bench, or witness on the stand, and of which words there was no record and which had no physical existence. To ensure certitude the judge who sat below by certifying the bill of exceptions officially informed this court of what was said in the court below. Evidently because there were other matters reviewable which were not within the common-law rule and the statute, Rule 12 was made to supplement them, and so ensure the litigants opportunity to have reviewed here every reviewable decision. Without the rule the record would be but the bare technical record referred to above. If there be a bill of exceptions, other things occurring at the trial could be brought here. Every other reviewable matter can be brought up by authority of Rule 12. There is, therefore, no conflict between the rules of law, statute, or rules of court, but on the contrary they supplement each other, and present a full, clear and complete procedure to bring up for correction every error in any judgment and proceeding in other courts of the State.

[10, 11] It cannot be said that there is not in the record physical evidence of the matters passed on by the Superior Court, because on two occasions the matters were certified to the Court in Banc for decision and after decision therein were referred back by that court to the Superior Court. The Court in Banc is a separate tribunal from the Superior Court, and in a sense an, appellate court to which questions of law are sent by the Superior Court on its own motion. It is not the final court of review, and its decisions do not bind the Supreme Court.

When the prothonotary of the Superior Court is ordered to send up a record, then by Rule 12 of this court he is instructed that in making up the transcript of the record to be so transmitted he shall omit certain matters in the cause there, some being named specifically and some in general language. He omits, for instance, all writs for appearance where there has been an appearance; all entries of applications for continuances; and in general “all other merely incidential motions and rules made in the progress of the cause.” The rule says, however, that these matters are to be omitted “unless * * * where some question may arise in regard thereto, reviewable by this court, then so much only of such matter or proceeding * * * as appertains to the decision or determination desired to be reviewed, shall be incorporated in the transcript and no more; the intent being to avoid incorporating in the transcript any other matter or thing not material to the full and fair presentation of the questions to be reviewed by this court.” It will be observed that all of the matters mentioned in the rule by special mention or general description would be omitted from the common-law record even in the absence of the above rule of court directing the omission thereof. There is a special significance, therefore, to the direction to include in the transcript every matter or thing which even appertains to the decision or determination which the plaintiff in error even desired to have reviewed, if the decision or determination be reviewable. Broader language could not be used to declare a liberal purpose to give widest opportunity to obtain a review of every reviewable matter and insure that every matter or thing material to a full and fair presentation to this court of the things which the party defeated below desired to have reviewed. In brief, it says omit this or that, but if there has occurred in the course of the cause any matter or proceeding reviewable by this court, which the plaintiff in error desires to have reviewed, send up what you have which appertains to such matter or proceedings. It required the prothonotary to send in this case all the matters and things appertaining to the efforts made by the defendant below to appear and defend the cause, including entries of appearances, motions to strike out entries and all the rest; for the defendant below desires to have reviewed here the decision and determination by the court below against his right to appear and defend the cause below; for as above pointed out, that decision or determination is reviewable here.

[12] The motion to set aside the judgment by default was properly included, for it preceded the final judgment, and was not a final judgment. No execution could have been issued on it until the amount of the damages had been sustained by verdict and a judgment had been entered on the verdict.

[13] Among the matters included in the transcript was the petition of the defendant made after the entry of the final judgment, asking that it be opened and that he be permitted to appear and disprove or avoid the claim of the plaintiff, and that the judgment be vacated. Was this matter which occurred subsequent to the final judgment properly in the transcript? It occurred before the writ of error was taken, and it was in its nature reviewable by this court. Elsewhere it has been field that such a matter is not part of the common-law record proper unless it be preserved by a bill of exceptions. In other cases it is excluded from the appeal record because the writ of error is taken to the final judgment, and though all reviewable proceedings prior thereto are brought before the appellate tribunal those subsequent thereto are not. It seems to us that the motion to open the final judgment is not properly in the transcript.

The numerous authorities to support the contentions of the defendants in error, that pleadings stricken from the files are not part of the record proper, are not applicable in the face of Rule 12. It is, of course, within the power of this court to determine what should have been included in the transcript, and to strike out from it matters improperly included therein.

The unanimous conclusion of the court as to the first motion, viz., for further security in the supersedeas bond, is that it must be denied.

The conclusions of the majority of the court as to the second motion to strike out certain portions of the transcript of the record are:

(1) That the petition to open the final judgment and the proceedings in relation thereto are not property part of the transcript and should be stricken therefrom.

(2) That the bill of exceptions was not property included in the transcript of the record in the cause, and should be stricken therefrom and be deemed to be no part thereof.

(3) That all the other portions of the transcript were property incorporated therein and should not be stricken out.

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Dissenting Opinion

Heisel, J.,

(dissenting):—-The question presented by the motion to strike from the record in this court the record of certain proceedings had in this case in the court below, with which I am unable to agree with the majority of the court, is whether or not the striking from the record by the Superior Court the appearance of the defendant and the pleas filed by him in a foreign attachment proceeding, under our statute, without entering bail as required by statute, is reviewable in this court.

When a writ of error issues from this court to the Superior Court, the questions that can be determined must be such as appear upon the face of a transcript of the proper record of that court, or such points of law arising in the course of the trial, material to the determination thereof, which, under our statutes may be included in a bill of exceptions. From these two sources must arise all reviewable questions.

I agree with the majority of the court that the bill of exceptions, under the statutory provisions relating thereto in this state, was not properly included in the record and should be stricken therefrom. Therefore if the action of the Superior Court in striking off the appearance of the defendant and the pleas filed by him is reviewable by this court, it must be as part of the record proper. At common law the record proper consists of the process, pleadings, verdict and judgment, and pleas stricken from the record are no part of it. The authorities on this point are practically unanimous.

If therefore, in the case at bar, the pleas stricken from the record by the Superior Court are to be a part of the record proper and, as such, reviewable by this court, we must find the authority for so holding, within'the statute, because at common law, it was not any part of such record, and without bill of exceptions, it was not reviewable.

I find nothing in the Constitution, statutes, rules of court, or decided cases of this state, declaring or defining the proper record of an inferior court to be sent to this court, on writ of error, to be in any way different from the common-law rule in that respect. Certainly the Constitution and statutes make no such provision.

As to Rule 12 1 am unable to see how it gives any assistance whatever in determining this matter.

The rule is as follows:

“In making up the transcript of the record to be transmitted to this court, the prothonotary or clerk of the court below shall omit from such transcript the formal heading and commencement of the record, stating only the title of the cause, and the time of the commencement of the suit or proceedings; he shall also omit all writs, or original process for appearance, where the party has appeared; all entries of continuances and imparlances; all entries of motions and rules to declare or plead; all entries of applications for continuances, for commissions, or for warrants of resurvey, and the affidavits in support thereof, together with the ruling of the court on such application; all entries of motions on rules for security for costs, together with the proceedings and rulings thereon; all entries of impaneling, swearing and names of jurors, and all other merely incidental motions and rules made in the progress of the cause; all pleadings withdrawn, waived or superseded by amendment; all commissions to take testimony and the formal returns thereto, and all warrants of resurvey, stating the time of issue and return of such warrant; all replevin, retorno habendo, and appeal bonds, and affidavits; all formal entries for motions for new trials, and the rulings thereon, together with the affidavits and other evidence used on such motions, stating in lieu thereof the fact of such motion being made, and how disposed of by the court; unless, where any of the foregoing matters or proceedings may be used as evidence in the cause, or where some question may arise in regard thereto, reviewable by this court, then, so much only of any such matter or proceedings as may be used in evidence, or as appertains to the decision or determination desired to be reviewed, shall be incorporated in the transcript, and no more; the intent being to avoid incorporating in the transcript any matter or thing not material to the full and fair presentation of the questions to be reviewed by this court.”

Briefly this rule is nothing more than directions to the prothonotary as to what shall be omitted from the transcript of the record as shown by the files of the case in his office, and does not attempt to distinguish those things in the files that are reviewable from those that are not reviewable. As the rule states:

“The intent being to avoid incorporating in the transcript any matter or thing not material to the full and fair presentation of the questions to be reviewed by this court.”

The object of this rule- becomes more apparent when we remember that under the old rules the prothonotary, when making up his record for this court under the writ, had before him the assignment of errors, whereby he would be advised of the questions to be raised, and therefore of the necessity of setting out in full those parts of the proceedings mentioned in the rule which ordinarily under the rule would be omitted, even though reviewable, so that the record would not be encumbered with immaterial matter.

The assignment of errors might consist of errors in the record proper of the case, or such as could be raised only by bill of exceptions, therefore the rule provided that the matters mentioned in the rule, although in the files of the prothonotary, should be omitted from the record unless they had been used as evidence and therefore could be brought into the record by bill of exceptions, or unless they were reviewable as part of the record proper.

The case of Easton v. Jones, 1 Har. 433, note a, was in the Supreme Court on writ of error issued after judgment on demurrer to certain pleas. The questions involved were, which party is bound to' set out an instrument after oyer, and whether the grant of 03rer makes the deed a part of the record.

The court decided that the mere craving of oyer, though granted, does not make a deed part of the record. And while considering that question said: .

"The craving of oyer is a kind of plea and may be counterpleaded, and the grant or refusal of oyer is a judgment of the court. If the court refuse oyer when it ought to be granted, a writ of error will lie.”

Clearly all the court meant was that the judgment of the court on such a pleading was a final judgment like a judgment on a demurrer to a plea, which it was then considering, and that a writ of eiTor would lie; not after further pleadings and a trial and final judgment on the trial as suggested by the Chancellor, but immediately, and in like manner that the writ would issue after judgment on demurrer to pleadings. All of which was the usual common-law procedure on common-law pleading and in no way" suggested a departure from the common-law rule governing what constitutes the record on writ of error.

The whole difficuhy, it seems to me, grows out of an attempt to review certain steps in an unusual statutory remedy by means of common-law rules which do not meet the requirements.

I am therefore of the opinion, that the action of the Superior Court in striking off the appearance and pleas is no part of the record proper of the case here and should be stricken from the record.

On the Merits.

The merits of the questions raised by the foregoing assignments of error were afterwards heard by Conrad, Rice, and ■ Heisel, Associate Judges (the Chancellor not sitting), and the court handed down the following:

Per Curiam:

In this case-there are nine assignments of error filed by the defendailt below, appellant in error. Voluminous briefs were filed and able and exhaustive arguments were made by counsel representing both parties to the action. However, as the judges comprising the Supreme Court at the time of the argument were also members of the Court in Banc at the time that court heard and determined the same questions raised by the assignments of error, and also in view of the fact that the same questions cannot arise in the future for the reason that by recent legislation defendants in foreign attachment cases are permitted to appear without first giving bail, we will not state reasons for our decision in this court, our conclusions being the same as they were in Banc, the time the case was argued and determined by the Court.

Without stating the numerous questions of law raised by the assignments of error and decided by the court below, we are of the-opinion that the judgment of the court below should be and it is hereby affirmed.