Tyler v. Simmons, 6 Paige Ch. 127

Tyler v. Simmons

6 Paige Ch. 127 | New York Court of Chancery | 1836

The Chancellor.

The vice chancellor was right hi supposing that it was not proper that the argument of the exceptions, and of the special motion to set aside the report for *130irregularity or to refer it back to the master, should be heard together. The two proceedings were incompatible and entirely inconsistent with each other. The filing of exceptions to a report necessarily presupposes that the report is regularly made, but that the master has dome to a wrong conclusion as to the whole or some of the matters referred to him for his decision. And if exceptions are filed after notice of any irregularity in the proceedings before the master, it is a waiver of the irregularity. If the party against Whom a report is irregularly made wishes to set it aside and send it back to the master to correct the irregularity, he should, instead of excepting to the report, get an order to enlarge the time for excepting; and in the mean time apply to the court to set aside the report for the irregularity, or to have the report referred back again to the master to hear' further testimony where a proper foundation is laid for such a proceeding. Irregularities in the proceedings before the master are not the proper subjects of exception to his re. port. The affidavits and papers which were read in opposition to the motion before the vice chancellor established the fact, beyond all doubt, that the books were properly in evidence before the master ; 'though from the informal manner in which the reference was conducted, the defendant’s counsel undoubtedly acted under the erroneous impression that the adverse party did not intend to use the books as evidence. The master therefore would have been justified in allowing the defendant’s counsel to produce further evidence in explanation of the entries in the books, although as a general rule the master ought not to hear further testimony after, the parties have seen the draft of his report.The 67th of Lord Lyndhurst’s new orders, in the English court of chancery, absolutely prohibits the master from receiving any further evidence in that stage of the proceedings. (1 Smith’s Ch. Pr, 567.) But as the defendant did not furnish the master with his own affidavit, showing what witnesses he wished to examine, and the particular facts which he wished and expected to establish by them, I cannot say that the master erred in refusing to go into further testimony. And the vice chancellor was right *131in refusing to interfere and send the case back to the master, after the defendant had taken so important a step in the cause as filing exceptions to the report and setting them down for hearing. The decision of the vice chancellor upon the motion, was therefore correct and should be affirmed.

Most of the exceptions to the report are improperly taken, as they do not relate to the correctness of the conclusions at which the master arrived upon the several matters referred to him to ascertain and report upon, but merely to the regularity of the proceedings before the master. The filing of exceptions to the report, as I have before stated, is not the proper form of correcting irregularities in the proceedings before the master. If the proceedings have been irregular, or the master has neglected to decide and report as to any matter which he was by the order of reference directed to ascertain and report upon, the proper course for the party aggrieved is, to make a special application to the court to set aside the report for the irregularity in the proceedings, or to refer the case back to the master for a further report upon the matters originally referred to him for his examination and decision. Exceptions to the report are only proper where the master has come to an erroneous conclusion upon some matter referred to him to ascertain and decide, and to report upon, as the immediate subject of the reference. Even where the master has introduced into his report matters which are wholly irrelevant to the accounts .and inquiries directed by the order of reference, exceptions do not lie to his report on that account. (Rufford v. Bishop, 5 Russ. Rep. 346.) The proper course for the party aggrieved by the introduction of such irrelevant or impertinent matter, is to apply to the court directly, by motion, to expunge the impertinent matter ; as it would be improper to refer it to one master to review the report of another in this respect. This disposes of all the exceptions but those which relate to the correctness of the master’s decision upon the nature of the interest of the defendant Simmons in the axe manufactory establishment at the time of the commencement of this suit, and the amount of such interest, and the situation and disposition of the property thereof.

*132The direction to "ascertain the nature and amount of the interest of Simmons in the manufacturing establishment carried on in the name of Miller, necessarily involved the inquiry whether Miller had any interest therein at the time of filing the bill, or whether it was then carried on in his name for the sole use of Simmons. If the decretal order directing that inquiry was not authorized by the pleadings and proofs which were before the vice chancellor upon the hearing, the proper mode of correcting the decretal order was by an appeal from the order itself, instead of an exception to the decision of the master. Whether the master was right in the conclusion at which he arrived, upon the question submitted to him by the court, could only be determined by an examination of all the evidence which was before him on the reference. And as the books were not produced before the vice chancellor upon the argument of the exceptions, it was impossible for him to say that the master’s decision was erroneous. The exceptions were therefore properly over-= ruled. And both of the orders appealed from must be affirmed, with costs.

Upon a subsequent appeal from an interlocutory order made by the vice chancellor, an application was made to dismiss the appeal upon the ground that such appeal had not been entered until the expiration of more than fifteen days after the appellant had actual knowledge of the entry of the order appealed from.

The Chancellor held, in conformity with the decision of the court for the correction of errors in the case of Jenkins v, Wilde, (14 Wend. Rep. 539,) that where the order appealed from is not entered by the appellant, the adverse party must serve a copy of that order, or a formal notice of the entering of such an order, if he wishes to limit the time for appealing from the same. And that information of the fact by parol merely, where neither the order nor a notice of the entering thereof, has been served upon the appellant or his solicitor, is no ground for dismissing the appeal.