Sherman v. Wells

14 How. Pr. 522 | N.Y. Sup. Ct. | 1857

By the court—Mitchell, Justice.

This cause was referred to a referee, who found for the plaintiff.

The plaintiff’s attorney then gave notice of taxation of costs for the 17th of February, 1857, which was adjourned to the 21st, but by mistake taxed his costs, and entered judgment on the 20th, and gave notice in writing that he had done so.

Then, (in fhe words of the affidavit on his part,) it was arranged between the attorneys, to go before the clerk on the 21st of February, and have the items of costs previously objected to, submitted to the adjustment of that officer, “ with the distinct understanding, that any of such items as should be disallowed by the clerk, should be deducted from and allowed upon the judgment and execution in the action, according to the practice in such cases.”

The defendant took exceptions at the trial, and before thirty days had expired from the 20th of February, he served on the plaintiff’s attorney “ exceptions in this action, and also a copy case as proposed,” which the plaintiff’s attorney received without objection. No other notice of appeal was served until the 2d of April, when a formal one was served. The costs were re-adjusted on the 21st of February last, at the same amount as before.

This court has no power to extend the time in w'hich a party may appeal, but if he has appealed in due time, and given an informal notice of it, the court may allow him to amend his notice, nuncpro tunc. Thus, if the reference to the judgment were incorrect, as if there were a mistake in the title, in the amount mentioned, in the date, or in any other circumstance, so that the court could be satisfied that it was intended for an appeal in the action in question, the necessary amendment would be allowed. Under §T73, the court may, in furtherance of justice, amend any pleading or proceeding, by correcting a mistake in any respect. The serving of exceptions, or a case, is notice in writing, that the party doing so intends to appeal; it gives notice to the successful party, as clearly and distinctly as if an express notice to that effect were served. It should always, therefore, be deemed a suEcient notice of appeal, if served in due time, especially if not objected to.

When it was served, the plaintiff should have returned it with notice of the objection, or he should be estopped from objecting to the want of formal notice.

In this case, when the plaintiff served his notice on the 20th of February, it was uncertain for what amount the judgment would be, as “the oislinct understanding was, that any items of costs' which should be disallowed by the clerk, should be deducted from the judgment, and execution, according to the practice in such cases. Thus, by the agreement, a deduction was to be made from the judgment, if any items should be disallowed. While this uncertainty remained, the defendant could not know in what amount, to prepare his undertaking. This uncertainty continued until the 21st, and any notice prior to that time was premature. The appellant is to appeal within thirty days after written notice of the judgment is given to him. This must mean of a judgment so perfected in form, that on the very day on which the notice is given of its entry, the appellant has on the record a knowledge of all the matters necessary to the perfection of an appeal, and of a stay upon it. One of these matters is the amount of the judgment, and that depends on the amount of the costs. So, that while the amount of the costs is kept open, no notice of the entry of judgment can be given, which will limit the time to appeal.

The order appealed from should be reversed without costs, and the respondent should receive a formal notice of appeal, as of the day when the case, or bill of exceptions, was served.