5 Paige Ch. 166 | New York Court of Chancery | 1835
It is the duty of the clerk to enter in the minutes of the court a statement of the pleadings, depositions and affidavits read, or agreed to be considered as read, or which were offered and overruled by the court on objection thereto, upon the hearing of the cause or matter before the vice chancellor. And if a question arises upon the hearing of the appeal, as to what papers were read or used in the court below, or offered and rejected, a certified copy of the clerk’s minutes of the hearing of the cause or matter, before the vice chancellor, is the proper evidence of the fact in the appellate court. The party whose duty it is to furnish the papers for the chancellor, upon the hearing of an appeal from a decree or order of a vice chancellor, should procure from the clerk a certified copy of the minutes, for the purpose of showing that the proper papers are furnished by him ; and, if necessary, he should also be prepared to show that the papers furnished for. the court arc correct copies. Where any mistake has occurred, by the clerk’s neglecting to enter a paper as read, which was in fact used, or agreed to be considered as lead, or from his entering a paper as read which was not used, or agreed to to be considered as read, in the court below, the minutes may be corrected, upon an application to the vice chancellor. But papers which were not in fact used in the court below, or agreed to be considered as read, or offered and rejected, can-
In this case, if the papers objected to by the respondents’ counsel materially varied the question presented upon the appeal, I should allow to-the appellant time to procure a certified copy of the minutes from the clerk, for the purpose of showing that they were read on the'.hearing of the motion to suppress the depositions. I do not see, however, that the case is Varied by those papers; they are therefore rejected. .The merits of the appeal depend upon the construction of the order of the 28lh of July, 1834, setting aside the ex parte order of the 11th of June, for irregularity, and upon the effect thereof upon the order of the 16th of June, closing the proofs in the cause. There is no doubt that the orders of the 11th and the 16th of June were originally both irregular. The first as having been obtained ex parte, in violation of one of the standing rules of the court; and the other being entered .while an irregular order, made by the vice chancellor through inadvertence, still remained in force. It was competent, however, for the vice chancellor to set aside the first irregular order, and thus to make the order for closing the proofs a regular order, by relation. 1 thick it is evident that he meant to do so in this case; and that the doubt which has arisen is attributable to the relief which he meant to give the complainant, by permitting him to have a further time to take the testimony which he had attempted to take after the entry of the order to close the proofs. It would certainly have been much better, and would have prevented some useless expense, if lie had in the first place set aside the ex parte depositions as irregularly taken. The order to close the proofs, although irregularly entered originally, was not absolutely void, but might be made good by setting aside the previous order which rendered it irregular. As the counsel for the complainant was undoubtedly misled by the want of explicitness in the or
The order appealed from is therefore affirmed, with costs. The parties are to have the same time to examine their witnesses, after the entry of the order of affirmance and notice thereof, as they had when the appeal was perfected; with liberty to the vice chancellor to enlarge the time, if he shall think proper to do so, upon hearing the parties. And the proceedings are to be remitted.
