16 How. Pr. 199 | N.Y. Sup. Ct. | 1858
The opinions which I intimated on the argument of this motion, have been confirmed on careful examination and deliberation. In the action in which it is claimed oy the relator that this court should by mandamus compel the clerk of the marine court to issue an execution, an appeal was taken by the defendant in that action, to the general term of that court. A motion was made before the special term of the said court by the plaintiff, to dismiss the appeal on various grounds of irregularity, of which the principal was, that the time for appealing had elapsed before the appeal was taken. The motion was granted, but was afterwards reversed by the general term. The appeal then proceeded on its merits, and the judgment of the special term in favor of the plaintiff, was reversed by the general term.
The relator, who was the plaintiff in that action, asks this court for a mandamus, to compel the clerk of the marine court to issue an execution, notwithstanding the reversal, on the ground that all the proceedings founded on the appeal were void, and that the judgment of the special term remains in full force. The question on the motion to dismiss the appeal, decided by the general term, was one concerning the regularity or validity of proceedings within its own especial cognizance ; and with regard to which, it is proper that its decisions should, generally be deemed conclusive. If, indeed, the time allowed
Again ; even if the proceedings relative to the appeal had been a nullity, and even if it did not belong to the inherent and essential powers of the court to pronounce whether they were regular or irregular, whether they were amendable or not amendable, or whether they did or did not constitute a nullity, yet I perceive, that the counsel for the relator, after unsuccessfully moving to dismiss the appeal on the ground of irregularity and nullity, argued the meritorious points involved in
I repeat, therefore, what I intimated on the argument of this motion, that it is not within my province on this occasion, to review the proceedings which constitute the alleged defects in this case. The court which had jurisdiction of the action, was the proper place in which to decide whether they were regular or irregular, void or not void; and even if its power on this subject were questionable, the relator by appearing, on
And even if this were not so, it is very doubtful whether it would be a proper exercise of the discretionary power of this court on an application for this high prerogative writ, to grant it on an occasion merely concerning the practical proceedings in another, though inferior court of judicature; which I think it expedient for several reasons, should have complete control over its own practice, in all instances not compromising the interests of substantial justice. This writ, undoubtedly, is of a most extensive remedial nature; but policy, convenience and justice, alike dictate that we should be cautious in awarding it.
Motion denied, with $10 costs.