5 Cow. 719 | Court for the Trial of Impeachments and Correction of Errors | 1826
Lead Opinion
I have not been able, in the short space of time alloAved for considering the point presented, and the arguments and authorities on Avhich it depends, to reduce my opinion to writing. Aided, hoAvever, by the very full and learned discussions of counsel, presenting the case in almost eATery possible point 'of vierv, I have come to a conclusion perfectly satisfactory to myself; which, Avith the considerations upon Avhich it has proceeded, I Avill briefly state to the court.
The question presented for our determination is, whether the respondent, John G. Vanderheyden, was properly made a party to the appeal from the surrogate. If he was, the argument must then proceed on the merits ; if not, there is an end of this cause.
It is an elementary principle, recognized in all the hooks, that a person having no interest in the subject of dispute, cannot be a party litigant: and I am not aware of a single exception in any one of our courts, whether proceeding according to the course of the common, civil or canon law. To show the nature and universality of the rule, and illustrate and enforce it, we need only go to the doctrines of a court of equity ; where the greatest possible latitude as to parties is indulged. There, not only must the original parties have an interest; but that interest is followed in all its changes. Although an action may proceed in some cases in the name of the original plaintiff, in trust for others, on whom the interest is cast by operation of law; (11 John. 488 : )yet, in equity, even in cases of change of bankruptcy or insolvency, a bill must be filed in nature of a bill or revivor. Thus, where B. filed his bill; and, after answer, was discharged under the act for the relief of insolvent debtors; and his effects were assigned to B. who assigned to C., it was held that a bill was necessary to bring in the new parties in interest. (Harrison v. Ridley, Com. Rep. 590, and vid. 2 Mad. Ch. 1 ed. 400. 2 Vern. 548, 632.) The case in Comyn examines the subject; and shows the ground and necessity of adhering to interest as the criterion of parties. Indeed, the contrary rule would pioduce a very singular-state of things. Any stranger would be enabled to crowd our courts with business, as his curiosity, his revenge, or the spirit of litigation or gain might prompt him ; and that too without settling any right, without the court being able to do a single act personally binding on any body beyond the mere question of costs.
It is not necessary to controvert the proposition so much dwelt upon at the bar that any one may enter a caveat against the proof of a will. Admitting this to be so, I do not see
I do not deem it necessary to inquire whether he had such an interest as would warrant his being a party when he commenced his proceedings in the court of the Surrogate. Admitting him to have been one of the distributees of the estate at that time, (and I think he was to be so regarded) that interest was defeasible ; and Avas in truth defeated by the birth of a posthumous child on the 16th of April, four days before the decree of the Surrogate Avas pronounced. This event changed the rights of the parties altogether. It not only divested the respondent’s right as distributee; but it appears to me it took aAvay all possibility of interest, all expectancy, unless it be a very remote one indeed. The will being out of question, all the estate, real and personal, vested in the child. To the real estate, the respondent plainly never could succeed, even on the death of the child, being an uncle of the half blood. But the real estate is not in question. The personal estate, if any, beyond the payment of debts, would pass to the next of kin. This is the mother; and on her death, it would pass to her next of kin. Her
Is the respondent a proper party pro forma, to vindicate the rights of others ? No such thing appears upon the record, or in any other way. It is not pretended that he is guardian to the infant, either ad litem, or otherwise. He has neither the custody nor protection of the child; and there is no rule in the books giving him a right to claim the guardianship. The uncle of the mother’s side would doubtless be preferred. Why allow the respondent to litigate under pretence of benefiting persons who have a real interest? Are we to presume them inattentive to their rights, and that the infant will be injured by their neglect? If this be so, I repeat, what right has a stranger to interfere ? The infant must seek his remedy on coming of age.
I think it follows conclusively, that the appeal should have been quashed by the Court of Chancery, when the motion was made for that purpose.
It was strenuously urged, however, by the counsel for the respondent, that it is now too late for the appellant to question the order then made; because, being interlocutory, he suffered the limitation of 15 days to pass, before his appeal was entered. This raises the question whether the appeal taken from the order awarding an issue, involves and brings up the previous one. It seems to me that that order is necessarily drawn in question. The inquiry whether there be proper parties to the litigation, runs through the whole proceeding. Not a step to be taken without them. The award of an issue, or any other order, is nugatory. They are essential to the form and constitution of the suit. This being so, the general principle was laid down in Le Guen v. Gouverneur & Kemble, (1 John. Cas. 498,) and is now well established, that “ by an appeal from any interlocutory or final decree, all the proceedings in the cause anterior to the decree are necessary to be presented to the court; and pro
The rule thus laid down is forcibly illustrated by the principal case. In deciding the question, whether there should have been an issue, we must look at the whole of it: and any ground which shows that there should not have been one may be urged. Whether the proof was satisfactory upon the depositions, is one question; and above all, whether there are any rights to be determined. The two orders appear to me to be so essentially connected, that justice cannot be done, otherwise than by considering them in one view. The doctrine on this subject was also advanced in general terms in Jaques v. The M. E. Church, (17 John. Rep. 548.) The importance of adhering to the rule may be illustrated in a variety of ways. Cases may be supposed where it is vitally essential to the administration of justice. Suppose a party should file his bill to be relieved against proceedings at law; and obtain an injunction, which is dissolved on the coming in of the answer. The case, however, eventually turns out to be a doubtful one at the hearing, as depending on a variety of facts ; and an issue is awarded. From this there is an appeal, and the issue is confirmed. Would not this court look back, and see whether the injunction was properly dissolved; and if not reverse the order of dissolution ; and direct it to be renewed by the Chancellor; in order to save the party against being stripped of the fruits of his litigation by the judgment and execution at law?
The only remaining question, respects the costs before the Surrogate. It is said the respondent has such an interest in these as entitles him to an appeal. If this be admitted, it by no means follows that we can consider the merits of the case, farther than they are connected with the question of costs. On seeing that they were improperly awarded, the decree may be reversed pro tanto. This, however, gives no rights to the respondent upon the other branch of the subject.
But I confess, I can see no possible ground of objection to the decree, so far as it relates to the costs. Indeed, it cannot be called a decree affecting costs. It leaves the parties, precisely as they would have stood had there been no decree; to the question between them respectively and the Surrogate, as to what they shall pay him for his services. There is no formal decree for costs; nothing which can be enforced by execution. The Surrogate, being satisfied probably that he had no power to award costs did not intend to make any decree respecting them; and what he said in the decree was his mere ipse dixit as to his own claim. It had no more effect than if he had pronounced it on any other occasion. It is not possible to make it out a decree within the meaning of the law.
At any rate, if it be a decree in form, it cannot affect the party. The Surrogate had no authority to awaVd costs. There being a want of jurisdiction, the decree was for so much, coram non judice, and void. It could never have been enforced.
On the whole, I am of opinion that the decree of the Court of Chancery, should be reversed; and that the proceedings be remitted, to the end that the appeal from the Surrogate be dismissed from the Court of Chancery.
Concurrence Opinion
I concur in the opinion delivered by Mr Justice Woodworth. The cases cited by him show clearly that we may go back from an interlocutory order mentioned in the appeal to another and previous order connected with it; though the latter was made more than 15 days anterior to the appeal. I cannot entertain a doubt of our right to do so in this case.
The respondent appears to me to have no rights, either in the real dr personal property, which warranted his being made a party to the appeal. They ceased with the birth of the child ; and he does not pretend to be pursuing this litigation in any other right than his own. It is remarkable, that when the petition was presented, and the motion made before the Chancellor to quash the appeal, the respondent himself, under oath, disclaimed all interest whatever in the subject of the controversy.
On the whole, who and what does this proceeding by appeal conclude ? No one in any single particular. Aftei the infant comes of age ; or when any other person duly representing him, comes before the proper tribunal the whole ground must be gone over again, even if we interfere now, and either reverse or affirm he decree on the merits.
I am in favor of a reversal for the want of parties.
Golden, Senator. I confess I felt myself unprepared to decide this cause, when the court took a resolution to pass upon it. I could readily concur in the general principle, that the party instituting a suit must have an interest. And there is another general principle, that when the interest ceases, the right to prosecute ceases. It is not necessary, then, to look back beyond the birth of the child; for the question comes to this; did the interest cease when the child was born, so absolutely as to take away all right to continue the suit.
I have listened with great attention to the reasoning in support of this order; particulary to that part of the reasoning which was intended to show that the respondent had an interest in some shape, either in his own right, or as representing others, which warranted the order of the Chancellor refusing to quash the appeal. And this is a question which I would willingly have looked farther into; as it appeared to me to be the turning point in the cause. But I confess the reasoning of Mr. Justice Woodworth seems to place the matter in a very clear light. It has convinced me that the respondent had no right whatever to prosecute the appeal. To adopt the language of the question which we put to a witness as the test of his competency, it seems to me the respondent can “ neither gain or lose in the event of this suit,” so far as the subject matter is concerned. Nor will an interest merely contingent vary the case, (though I confess I cannot see that the respondent has any such.) An interest strictly contingent will not even disqualify a witness A rule which should receive a party upon the footing oí
As to the objection which goes upon the statute of limitation, the rule is, that all interlocutory orders connected with the decree appealed from, are brought up with it. I understand this to mean that the orders are essentially connected, so that you cannot dispose of the one appealed from according to the justice of the case, without interfering with the former orders, some or one of them. It is only necessary to see in this case, that the appeal brings up the question of proper parties, to warrant our looking into the previous order. Now I understand the question of parties to be always connected with a decree touching the merits. Suppose this cause had gone to a final hearing and decree, is •there a doubt that an appeal would then have brought up this question ? 1 think not. If so, an appeal from an interlocutory decree relating to the merits, ought, a fortiori, to have the same effect. Whether a court be one of original jurisdiction or appeal, it is always proper that it should look and see if the parties before it are such whose interests and rights are to be concluded. This is always a question on the final hearing of a cause. Suppose this were the first moment of presenting the question in the whole course of the cause, I do not think we should hesitate to interfere.
On the question of costs, I concur with Mr. Justice Wood-worth.
Viele, Senator. I am in favor of hearing the argument upon the merits before giving any opinion. For that reason I shall vote against the dismission of the appeal by the Chancellor.
Spencer, Senator. I concur with Mr. Justice Wood-worth, and the Chief Justice. As to the right of going back to, and looking into the previous order, there is a great similarity between the,-principal case and that of Gouverneui
I must say I think, with Mr. Golden, that if the objection for want of parties were now made for the first time, we ought to listen to it.
On the question whether there be any interest in fact in the respondent, I have nothing to add to what has been said already. But there was one thing on this head which drew my attention particularly, as I now learn it did that of the Chief Justice. It is, that the respondent (the appellant in the Court of Chancery) came into that court with a sworn disclaimer of all interest. I will read an extract from his affidavit, made and read in opposition to the motion to quash the appeal on the ground that he had no interest: “And this deponent further saith, that in objecting to the proof of said paper,” (the will in question,) “ and filing a caveat, and in appealing from the decree of the said Surrogate, this deponent hath not been actuated by the hope or expectation of benefiting himself by acquiring any part of the estate of the said Samuel; but on the contrary, this deponent hath often stated to his counsel, and to others, that he did not intend to participate in the estate of the said Samuel in any •event; and hath declared it to be his intention to release all claim which he might make thereto.”
Here is as strong a disclaimer as can be stated on any record. A decree should always be final. It cannot be so unless the party upon whom it is to operate have an interest in the .subject of it. I want no authority to show that a party must always be thus interested.
Gardiner, Senator, stating that not having had time to «camine the question, he was not satisfied how it should be decided; and, therefore, declined giving any opinion.
Wright, Senator. I understand the object of the issue was to ascertain the single fact, whether the deceased was or was not of sound mind and memory when he executed his will. I confess I am not at this moment prepared to deny that truth may be elicited in this form; although the party to the issue may not be technically interested in the subject bequeathed. Further reflection might convince me that this is so ; but not being prepared at present to join in such a decision, I must vote against the dismission of the appeal by the Chancellor.
Elsworth and Mallory, Senators, concurred with Mr. Wright, that the appeal should not be dismissed.
The rest of the court concurring with Mr. Justice Wood-worth,
It was thereupon ordered, adjudged and decreed, that the order or decree of the court of Chancery, of the 29th day of April, 1825, directing a feigned issue to be made up and tried between the above named parties, be, <fcc. reversed and vacated: that the court of Chancery do dismiss and quash the appeal brought by the said John. G. Vanderheyden, in the said court of Chancery, from the order or decree of the Surrogate of the county of Rensselaer, and all proceedings had thereon, without costs below to either party; and that the record and proceedings be remitted to the court of Chancery, that the decree might be executed.
END OF JANUARY TERM.