57 Barb. 204 | N.Y. Sup. Ct. | 1870
This is an appeal from an order made at a special term held in Monroe county, denying a motion made by Messrs. Eield and Shearman, as attorneys for “ Church and others,” to set aside all proceedings taken upon the “ alleged judgment,” entered 31st December, 1869, to require the receiver, Eobert L. Banks, to retake possession of the property of which he was originally made receiver, and the persons to whom he has surrendered it to restore possession to him or some other receiver, and to vacate and set aside the alleged judgment and the decision therein mentioned, as irregular, or, in the alternative that so much of the motion be denied, then that the said “ alleged judgment” be set aside, and the said decision and findings be sent back to the judge who tried the cause, for re-examination and re
The appeal, however, was argued upon the assumption on both sides that the motion was made in behalf of the persons claiming to be directors of the railroad company, who had assumed to elect Walter S. Church, Esq., as president, and who on the argument were, and herein for convenience will be, styled the Church directors, and was resisted by those claiming to be directors of the company, who had assumed to elect Joseph H. Ramsey, Esq,, as president, and who were, and will be herein, styled the Ramsey directors. Both sets oi; directors, with the presidents by them respectively elected, were parties defendants to the suit. The appeal before us, as appears from the notice of appeal, was taken by the Church directors and one A. J. Phelps. The complaint in the action is not among the papers submitted to us, and from the papers before us we are unable to discover the connection of Mr. Phelps with the case. But it was not claimed upon the argument that he had any interest or right, other than such as was asserted in behalf of the Church directors.
These rival sets of directors had been contending for the possession of the franchise and property of the road, and not only were a great variety of suits commenced, and injunctions issued, in the interest of these respective parties, but the public peace was seriously endangered and even disturbed by their controversies. Under these circumstances the governor of the State, at the request of
The action was tried before Justice E. Darwin Smith, at the Monroe special term, held on the 29th day of November, 1869. The said justice delivered an elaborate opinion in the case, which it appears was published in the Rochester morning papers of December 31st, 1869, and on that day the findings of fact and conclusions of law arrived at by the said justice, and stated by him in writing, were duly filed, and the judgment or order complained of was entered on the- same day, at 2 o’clock and 30 minutes, p. m. By this judgment or order the Ramsey directors were declared to have been duly elected, and to be the lawful directors of the company. It was ordered that certain of the defendants recover their costs of the action against the Church directors; that it be referred to Hon. Samuel L. Selden to pass the accounts of the receiver,' and to report what would be a proper extra allowance in the action, and to which of the defendants it should be paid; “ to settle such other matters of detail as may be necessary to carry this judgment into effect;” and that the Ramsey directors be let into immediate possession of the property and effects of the road company; and that Mr. Banks, the receiver, transfer to them all the property and assets of the railroad company in his hands, retaining out of the moneys in his hands as such receiver, his fees, expenses and charges to be adjudged by the referee.
The special term which made the order now appealed from, as a part of the order, directed the suppression of
The points insisted upon by the counsel for the appellants will, for convenience, be considered seriatim in the order in which they are presented by their brief.
1st. It is claimed that it was the duty of the successful party, after making a draft of their judgment, to submit it to the adverse party to propose amendments, and that the omission to do so renders the judgment irregular. We do not understand that the service of a draft of judgment and the other proceedings referred to is required by any present provision of law or rule of court, or has been usual under the present practice. Under the former practice of the Court of Chancery, it was customary, in cases where the decree was very special in its character, to .serve a copy of the proposed decree upon the opposite party, with notice of settlement before the register. This practice apparently grew out of the fact that there was no other guide to the form of the decree than the mere minute of the decision, or the opinion delivered by the court.
In case the register did not understand the decision, he was in that case only to apply to the court for information.
But it does not appear that it was the practice of that court to set aside a decree merely upon the allegation that a draft had not been previously served and a settlement made on notice.
There was no specific finding of all the facts or conclusions of law accessible to the register or the parties. As the Code now provides that the justice who tries the cause shall give a decision in writing, which shall contain a statement of the facts found and the conclusions of law separately, and that “judgment upon the decision shall be entered accordingly, the reason for the former practice is in a great measure done away with, though something similar may be, and often is, convenient under our present
■ 2d. It is said this judgment should be set aside for what is called a “mistrial,” by reason of the omission of Justice Smith to decide the issues which were in the case and contested on the trial.
On this point it might be sufficient to say that the appeal papers do not disclose to us the evidence in the cause, so that we are unable to see what was contested on the trial. But assuming the position of the counsel for the appellants to be well founded in fact, we are of the opinion that whatever may be the remedies to which a party may resort, in case of the omission to find a fact supported by the evidence, and deemed material, a special motion to set aside the judgment for irregularity is not among them, according to a recent decision of the Court of Appeals; the remedy, in case the fact is established.by - uncontroverted evidence, is by appeal. (Mason v. Lord, 40 N. Y. Rep. 476.) Where the evidence is conflicting as to the fact, the omission to find which is complained of, the remedy is, at the time the case is presented to the judge for settlement, to present and leave a request to find such facts and conclusions of law as he deems necessary to be found in order to protect the rights of the party; and it is the duty of the judge to pass upon such requests, and to find as requested or then refuse to find, so that the party may have the benefit of an exception to his refusal.
Such we understand to be the construction of section 268 of the Code, which requires the judge, on the settlement, of the ease, to specify the facts found by him, and his conclusions of law.
In either of the two latter alternatives, a motion at
3d. It is claimed that no judgment has yet been perfected, so as to be the subject of review on appeal. That until it becomes complete and final it is not in a condition
Conceding that this were, as claimed by the counsel for the appellants, not a final judgment, but in the nature of "a decretal order, or interlocutory decree, the proceedings under it which they ask to set aside are simply the surrender of the property by the receiver, and the taking of the possession by the Ramsey directors.
The first order of Justice Barnard was to stay all proceedings on the <c decision” of Justice Smith, until the findings of fact and conclusious of law had been served
This order appears to have been founded on the affidavit of Amasa A. Bedfield, to the effect that he had learned that the justice had decided the cause adversely to the deponent; that deponent had received no formal
The act of the Ramsey directors in taking formal possession of the property occurred on the 31st of December; the order in question was not served upon any person till some time on the 1st of January. On that -day proceed
It was held by Justice Mason, in a case quite analogous, that a proceeding such as that before Justice Peckham was not a proceeding upon the judgment. ( Welch v. Cook, 7 How. Pr. 282.) There the application was for an order to deliver the books and papers belonging to the State treasurer. If that decision be correct, it is obvious that the order of Justice Barnard, made in this action, to stay proceedings on the judgment, could not have the effect
bio act is shown to have been done under that order, and we do not feel called upon simply to set the order aside on this somewhat collateral motion, the notice of which does not refer to the order.
As to the claim that the proceedings were stayed by the appeal and undertaking, the decision of Justice Mason, that the proceeding is not a proceeding on the judgment, equally applies, but moreover, as appears from the papers before us, the appeal was from the entry as a judgment, and the only undertaking filed is for the costs and damages to be awarded against the appellants on the appeal. The judgment appealed from directed the delivery of a large amount of real and personal property.
Section 348 of the Code provides that an appeal from a judgment entered on the direction of a single judge of the same court does not stay the proceedings, unless security be given as on an appeal to the Court,of Appeals. Therefore to stay the proceedings on the appeal in this case, at least so far as regarded the delivery and taking possession of the property ordered to be delivered, it was requisite that security should be given, as provided in sections 336 and 338 of the, Code. This was not done, or attempted.
5th. It is stated that the proceedings of the Eamsey party were taken for the purpose of forestalling an appeal and stay of proceedings.
We cannot inquire into the motives of the parties, but only whether they have been exercising their legal rights.
Under this point it is claimed that it is irregular for the judge to furnish the successful party with his findings before they are filed, or to permit the attorney for the successful party to draw up the proposed findings.
We think, on the contrary, this will be found to have
And we think it has been quite usual in practice, especially in cases where the findings are long, for the justice who tried the cause to furnish the attorney of the successful party with a brief minute of his decision, and request him to prepare in form the statement of the findings of fact and conclusions of law ] and when these have-been submitted, and altered and amended according to the actual decision of the judge, the latter often, instead of going, or sending them, to the clerk’s office, personally delivers them to the attorney to be filed. Sometimes the justice is in one place, the attorney for the successful party in another, and the clerk’s office in a third, and in such cases it has not been unusual for the justice to send the fihdings, when signed, by mail to the attorney for the successful party, to be filed, and certainly in most cases, without any communication to the unsuccessful party.
In fact the decision of the judge as to drawing up, delivery and filing, has in practice been treated in the same manner as the report of a referee, and for the same reason. We are not aware that complaint has ever been made that a referee did not file his report personally; that it was drawn up by the successful party; or that it was not communicated before filing, to the opposite party; and we see no reason for a difference of practice in the two cases.
The sixth and last point made by the appellants relates to the supression, on the motion below, of the certificate and affidavits. This was. a motion to set aside the judgment or order for irregularity. The certificate was to the
Matters set forth in papers presented to the court, or filed, which are not material to the decision, are impertinent, and if reproachful, are scandalous. (1 Barb. Ch. Prac. 202.) This certificate and the affidavits in question being irrelevant, were impertinent, and the affidavits tending to impute to the justice vacillation of purpose or opinion', and to the counsel for the Church directors great infirmity of temper, were also scandalous. In such case affidavits and other papers, on a motion, may be suppressed by the court, on inspection. (1 Barb. Ch. Prac. 574.)
We are of the opinion that the order appealed from should be affirmed, with ten dollars costs, and order accordingly.
The order appealed from having been made by Justice Johnson, he did not sit on the hearing of the appeal.
Order affirmed.
Mittin and Talcott, Justices.] ,
«) Before the amendment of section 267 of the Code, in 1870, it was settled that it was the duty of the cleric, unless otherwise directed by the court, to enter judgment at once on the filing of the decision or report, and that the successful party might cause it to be done, (Cotes v. Smith, 29 How. Pr. 326, affirmed 31 id. 153;) also that the omission of the clerk to do so would not be allowed to prejudice the party. (Butler v. Lee, 33 How. Pr. 252.)
That amendment provides that in cases of trial ly the court,, “judgment upon the decision accordingly, shall be entered four days thereafter.” Is not this an unwise provision 7 Suppose a controversy between rival presidents or directors of a railroad company, as to who is such, de jure, and entitled to the control of its funds, often amounting to millions, to be determined against the officers defacto, who have possession and control of the funds. Might not a single unsuccessful defendant step over to New Jersey with them! Every lawyer will readily perceive a multitude of cases where a delay of justice after its certainty is known, will be equivalent to its denial. As the amendment provides that judgment shall be entered four days thereafter, would the court, even in a proper case, have power to deprive the successful party of a statutory right, and stay proceedings for more than four days 7 Would it not be far better for the legislature to concede to the courts honesty equal to that possessed by its members, and to assume that courts will properly exercise a discretion confided to them, and allow them to control their determinations 7
i) It is strange that the theory of making and settling a case and exceptions upon trials before the court or a referee does not seem to be understood by many of the profession.
geption 272-of the Code, which applies to referees, provides that “their
The theory of the statute (the Code) is that the decision or report shall be general for such judgment in favor of the successful party, as he is found to be entitled. “ The decision of the judge or report of the referee, which goes into the record, is merely the authority for entering the judgment, and therefore it merely states, in general terms, what the judgment is to be. All beyond that is mere supererogation." (Otis v. Spencer, 16 N. Y. Rep. 612.) It is true, section 272 provides that “referees shall state the facts found, and the conclusions of law, separately.” This provision is given at length in the case last cited, and we understand that case to hold that it applies to the settlement of the case and exceptions, and that the decision of the judge, and report of the referee, as contemplated by the Code, may be general, although the court, in Manly v. Insurance Go., (1 Lansing, 23,) seems to think this section requires the referee to find the facts and conclusions of law in the first instance. In cases where a party may be defeated upon either of several grounds, the report would not inform him what theory the referee adopted upon that, or whether the referee found with him or against him upon others. To remedy this, in part, the court, by its rules, (Sule 32,) provided that, upon a trial by referees, “ they shall, in their decisions and final reports, state the facts found by them, and their conclusions of law, separately." This provision of the rule is supplementary and additional to the statutory requirements, as to the manner of proposing and settling a case and exceptions for review, which provide that a case and exceptions may be proposed and settled by a referee in “ like manner ” as by a judge, (§ 272,) and that the judge, “ in settling the case, must briefly specify the facts found by him, and his conclusions of law.”
Until the amendment of section 268, in 1869, although the appellant might have been entirely satisfied with the facts as found by the decision or report, and might not have wished any additional ones, and notwithstanding the
Every presumption will be made by the appellate court in favor of affirmance, and the appellant must, in the Court of Appeals, present facts, found affirmatively, which, on their face show error. If they are not found at all, the court will presume they were found for the respondent, (Grant v. Morse, 22 N. Y. Rep. 323; Manly v. Ins. Co., 1 Lansing, 20; Farmers' &c. Bank v. Parker, 37 N. Y. Rep. 150; Bissell v. Pearce, 28 id. 255; Siemon v. Schurck, 29 id. 615 ;) provided upon examining the evidence it appear that it would warrant such additional findings. ( Valentine v. Conner, 40 N. Y. Rep. 248.)
In order to found an objection to a refusal to find any fact, even though there be no evidence to the contrary, the referee must be requested, by the proposed case and exceptions, specifically to find the fact, and if he refuse, an exception must be taken to such refusal. (Grant v. Morse, 22 N. Y. Rep. 323. City Building Company v. Fatty, 4 Transcript App. 312.) If the evidence upon the question be not conflicting, the exception to such refusal, or if it be found, to its finding, then presents a question of law. (Mason v. Lord, 40 N. Y. Rep. 476. Wyman v. Childs, 41 id. 159. Porter v. Ruckman, 38 id. 210. Draper v. Stouvenel, Id. 219.)
Suppose a case where the party defeated desires to review the referee’s decision, and his report does not find, or refuses to find, one way or the other upon all the facts the appellant desires to present, so that exceptions to that will not be sufficient; or that he wishes to contend that a fact found was entirely unauthorized by evidence; or wishes to insist, as he may do at the general term, (Waters v. Green, 3 Keyes, 385; McCabe v. Brayton, 38 N. Y. Rep. 196 ; Loeschick v. Baldwin, Id. 326,) that the finding was contrary to evidence. He must then prepare and serve a case containing the evidence. He should file and serve separate exceptions to the facts and conclusions appearing in the report, within ten days, or such extended time as he may procure, unless he serve his case and exceptions, containing also such exceptions to the facts
The refusals to find, in the cases above referred to, were based upon the cases of Lefler v. Field, (33 How. Pr. Rep. 385;) Nelson v. Ingersoll, (27 id. 1;) Sermont v. Baetjer, (49 Barb. 362,) and possibly others in the seventh district, and not from any desire upon the part of the referees to avoid doing so. In those cases, however, the court held, contrary to the cases in the Court of Appeals above cited, that the court would make no presumptions in favor of affirmance, but if the facts found in and appearing upon the face of the report itself, did not justify the judgment, it would be reversed. The last two cases were upon review of the merits, on appeal, and not upon a motion directly to compel a referee to find upon facts proposed for settlement. The first arose on a motion to strike out of the printed case a statement that on the settlement of the case the referee was asked to find upon certain proposed facts, and that he refused to find either way, or to make any additional findings; so that the question whether the court, on motion, would have compelled him to find upon the proposed facts, did not arise in either case, as in the latter, the case, so long as the settlement was not changed, should have conformed to the settlement actually made. In Trufant v. Merrill, (37 How. Pr. 531; 6 Abb. N. S. 462,) the Superior Court of New York seems to have held that the court would not, before judgment, send the case back for further
The cases in the seventh district, and that in the Superior Court, seem to proceed upon the theory that as soon as the referee has made and filed his report he is ftmctus officio, and cannot afterwards perform any act involving judicial discretion, until set in motion by the court. The settlement of a case and bill of exceptions is clearly a judicial act. (Hidden v. Lahens, 14 Abb. 48. Birge v. The People, 5 Park. Crim. Rep. 9.) It may well be that the referee cannot gratuitously volunteer new findings, and that in order to authorize him to make them, he should be set in motion by the court, but the court clearly does so constructively, (all acts done by the attorneys in a cause are constructively performed in court,) when a party authorized so to do by law and practice of the court calls upon him to settle a case and exceptions, as a necessary and proper step in the administration of justice by the court. The court constructively and legally calls upon him to exercise one of the duties which his appointment and his entering upon the office of referee require him to perform, and there is no more reason why he should not act judicially in finding facts, than in settling disputes between the parties as to the evidence given upon the trial, or any other question which arose thereon. We think we have shown that the above cases in the seventh district, from the manner in which the questions arose, did not pass upon the question we have discussed, and can be harmonized with the practice as we understand it. If, however, this be not so, the decision of the general term in the fourth department, including the seventh district, overrules them, and the practice in the Supreme Court is now uniform throughout the State.
The Court of Appeals has power to send a case back to the Supreme Court for resettlement, (Westcott v. Thompson, 16 N. Y. Rep. 613,) even after argument. (Rice v. Isham, 1 Keyes, 44, 47.) As the referee is not an officer of that court, but of the Supreme Court, a motion should be made in the latter court that the case be sent back to him for resettlement. ( Westcott v. Thompson, 16 N. Y. Rep. 616.) And though the case be pending in the Court of Appeals, the Supreme Court, at special term, has power to order a resettlement, and that the corrected case be returned to the Court of Appeals, with a recall of the former, or a request to correct it. (Whitbeck v. Whine, 8 How. Pr. 433. Luyster v. Sniffin, 3 id. 250.)