Fry v. Bennett

7 Abb. Pr. 352

Opinions

By the Court.

*—Woodruff, J.

—That provision of the Code of Procedure which limits the time within which an appeal must be taken is wisely enacted, in order that litigation may be terminated. That as other statutes prescribe' the time within which causes of action must be prosecuted, and still others provide compulsory means by which the progress of the controversy may by either party be hastened to judgment, so that by means of this limitation further litigation by appeal from court to court may be finally terminated.

And in providing this last means of determining the matter finally, and as the case may be debarring the unsuccessful litigant of any review or reconsideration of the matters which have once been adjudged against him, the framers of the law have, we think, had a twofold purpose before their minds: first, to make the condition of the limitation so plain that there should be no danger of misconstruction or misapprehension; and second, to place it in the power of the prevailing party to set the time running within which an appeal shall be taken whenever he may choose.

By this means each party is placed in a situation to know distinctly and clearly what is the actual state of the controversy in this respect.

The losing party will not be taken at unawares, and be deprived of a right of review, and the prevailing party will know precisely when the right of review is waived or lost.

It is with this twofold purpose, we think, that it is provided by section 332 of the Code of Procedure, that the appeal from the special to the general term must be taken within thirty days after written notice of the judgment or order shall home been given to the party appealing.

Upon this we observe, that in order that the thirty days shall begin to run, it is not enough that the party have notice of the order. That was conceded on the argument of the present motion. ]STo oral communication, therefore, is sufficient. ¡No presence in court, and hearing the decision announced, nor the order of judgment declared by the court, is sufficient. He must have written notice.

Again, we deem it equally clear that the written notice which is to avail to limit the time must be such as to apprise him fully of the whole substance, if not the very details of the order or judgment given or made against him. Without this he is not in a situation to determine whether he will appeal or not. He can, without such notice, make no election.

Further, the notice he receives must come to him from an authentic source, else he is in no manner bound to rely upon it, or take any action founded thereon. The attorney for the adverse party is the person to whom he is to look for all notices in the progress of the cause, and he is not bound to receive or regard any others, unless it be such as contemplate the displacement of such attorney, or the employment of a new attorney.

The notice is to be given to Mm, which, in our judgment, plainly means that it shall be served upon him.

All this is simple—easily understood. It enables the party to see and apprehend his precise condition in reference to the subject. And on the other hand, it leaves the prevailing party at full liberty to set the thirty days a running when he pleases, or to acquiesce in or allow an unlimited time within which "to appeal if he chooses to do so.

We think that the term notice, in this statute, has a meaning in some degree technical; that in its connection it imports something written and gi/oen to the party for the very purpose of apprising him of the judgment or order; and that it was intended to mean this, in order to prevent the uncertainty and conflict which would result from allowing the limitation to depend on the question whether the party had ever seen the order of judgment or a copy thereof; or upon any similar questions.

It is unnecessary for us to say, and we do not intend here to say whether, if the party prevailing issue execution, and that execution be exhibited to the other party by the sheriff and is levied, that that would or would not be a sufficient notice. ¡Nor whether, if the party prevailing actually serve upon the other a copy of the order or judgment, duly certified by the clerk of the court, without further authentication, that would or would not be a -sufficient notice.

But we do intend to hold-, that unless after the order is made and judgment réndered, or entered, or filed, and constructively entered, so as to become a part of the record or minutes of the court, he has some written notification thereof by act of the prevailing party or his attorney, his time to appeal continues without limitation. He may acquire knowledge of the order; he may examine it on the files of the court, or on its records, or procure a copy of it from the. clerk. For many purposes this and any actual knowledge of the order or judgment will be notice, but as a limitation of the time to appeal, knowledge so acquired will be wholly inoperative. There is nothing novel in this view of the subject.

By the provisions of the Revised Statutes relating to appeals to and from the Court of Chancery, different rules were made in relation to different appeals. Some must be taken within a certain time after the decree was entered in the minutes .of the court—e. g., appeal from vice-chancellor to chancellor, from a final decree. (2 Rev. Stats., 278, § 98.) Another from the time the decree shall have been recorded—e. g., from a decree of surrogate on final settlement of accounts. (2 Rev. Stats., 610, § 105.) Others from the time the order, sentence, or decree shall have been made—e. g., appeals from surrogates not specially provided for. (2 Rev. Stats., 610, § 107.)

Appeals from final decrees of the Court of Chancery to Court of Errors from the time of enrolment (2 Rev. Stats., 605, § 78); from an interlocutory order of a vice-chancellor within fifteen days after the notice of such order (2 Rev. Stats., 178, § 98); and what is especially applicable to the point under consideration, all appeals from any other order or decree of the Court of Chancery (except final decrees) to the Court of Errors, must be made within “ fifteen days after notice thereof shall have been given to the party against whom such order or decree shall be made, or to his solicitors.” (2 Rev. Stats., 605, § 79.)

The construction of this language came under consideration in the Court for the Correction of Errors, in Jenkins a. Weld (14 Wend., 545); and we have done little more than borrow the language of Chief-justice Savage, in giving the opinion in that case. “ It is notice to be given,” &c. “ This implies a positive act of the party in whose favor the decree is made.” * * *

“ It is clear to my mind that the Legislature intended a regular formal written notice.” (See also Hoffman's Ch. Pr., 20; Tyler a. Simmons, 6 Paige, 132; The People a. Backus, 9 Ib., 607.) '

The application of these views to the motion before us is obvious.

The motion to dismiss the appeal must be denied.

II. Appeal from order denying the defendant’s application to amend his notice of appeal.

By the Court.—"Woodruff, J.

—The court have no power to extend the time within which an appeal may be taken.

The court are not authorized to do indirectly, under color of amendment, what they may not do directly.

A notice of an appeal from an order, when actually given in due season, if there be particular defects therein which do not destroy its substantial character, may be amended. And so of an appeal from a judgment.

But where a notice of an appeal from a judgment has been given, in all respects perfect, and containing nothing more, the court may not allow an amendment, so as to make the appeal also an appeal from an order denying a new trial, after the time for appealing from such order has expired, and so, in substance and effect, allow a new appeal.

An appeal from a judgment does not bring before the general term for review an order denying a previous motion for a new trial.

To bring such an order under review, an appeal from the order is necessary.

These conclusions embraced in the opinions given by me at the special term, on denying the motion upon which the present appeal arises, we now affirm, (Mr. Justice Hoffman, however, dissenting from our conclusion that the time to appeal to the general term cannot be extended.) It is not deemed necessary here to refer to the reasons which were there given for the purpose of either repeating or reviewing them.

But one ground for allowing an amendment in this case, or in the alternative permitting the defendant to file and serve a notice of appeal nuno pro timo, is now urged upon our attention, which, although the facts relied upon appear on the papers, was not prominently presented at special term, nor discussed in the opinions there given.

It is insisted by the defendant that the omission to file or serve a notice of appeal has been waived, in such wise that the plaintiff cannot now allege the defect, and that it is therefore proper to allow either an amendment or the filing of the notice nimo pro imno, to the end that the record may conform to the actual condition of the cause before the court. That the general term has actual jurisdiction of the appeal as an appeal from the order denying a new trial, by the appearance of the respondent, and arguing the appeal, not only as an appeal from the judgment, but also as cm appeal from the order.

Whether, when no appeal has in fact been taken, but the parties nevertheless appear before the general term, present a case purporting to be a case or exceptions on appeal, and argue the matters arising thereon, avowedly and unequivocally as an appeal, they should not be held concluded thereby, we do not think it necessary in this case to decide. There are strong reasons for holding that an appearance on appeal and an actual argument and submission of the questions arising upon the case to the court, without raising the objection that no appeal has been taken, is a submission to the jurisdiction of the general term, and operate to confer jurisdiction as fully as if a formal appeal had been taken by filing and serving written notice thereof.

It is, however, not too much to say that the assertion of jurisdiction by the general term, in the absence of any actual appeal, should proceed upon acts of the respondent, unequivocal in their character, and either indicating an intentional assent thereto, or being at least plainly inconsistent with a claim that no such appeal is pending.

The allegations on the part of the defendant here, upon which it is claimed that there has been a waiver of an actual notice of appeal and a submission to the jurisdiction of the court, are mainly as follows:

That there was no argument of the motion for a new trial at the special term, but that there was an understanding and agreement between the attorneys and counsel for the parties, that the motion should he denied pro forma, and the whole matter considered at the general term.

That the case made herein and used at the hearing in the general term, contained all the evidence in the cause, and was thus prepared with a view to the discussion of all questions which the defendant’s counsel might wish to raise on a motion for a new trial.

That the counsel for the parties respectively did insert in their points used in the argument on the ajopeal from the judgment, grounds for granting a new trial, which could with propriety be only urged on such a motion, and could not properly be considered on an appeal from the judgment only.

In relation to the first of the defendant’s allegations above, in substance recited, the attorney for the plaintiff, by his affidavit, denies that there was any understanding or agreement of any kind between the parties than what is contained in the order itself, which denies the new trial. That order, after reciting the motion, and the grounds on which it was moved, denies the motion as “ upon hearing counsel,” and gives to the plaintiff liberty to perfect his judgment. It then provides, that if the defendant appeal from the judgment within thirty days, such appeal shall operate as a stay of proceedings on such judgment pending the appeal. This order, if it throws any light upon this subject at all, indicates rather that no intent to pursue the matter as a motion for a new trial was entertained; and the defendant’s attorney states in his affidavits that the order was prepared by the defendant’s counsel himself. So far as the order suggests any thing, it is that an appeal from the judgment only was then contemplated.

And in this direct conflict of affidavits we do not find ourselves called upon to say, that it is clearly shown that there was an agreement or understanding, such as is alleged on the one hand and denied on the other.

The case used on the argument of the appeal, no doubt contained all the evidence taken on the trial—that is not denied. No doubt the case as prepared for the purposes of the motion for a new trial was printed, without alteration, for use on the appeal to the general term; but when we recollect that, however inconvenient and improper, it is a very common practice with a large portion of the attorneys at this bar to present cases on appeal from the judgment in the same form as here exhibited; and more especially when we observe that there are in this case eighty-two exceptions, to the proper understanding and consideration of many of which large portions of the testimony were essential'; we think no great weight can be given to the circumstance that all the evidence was printed and furnished to the court on the argument of the appeal.

The remaining consideration is, that the counsel presented points on both sides which could only be properly argued on a motion for a new trial. On the part of the appellant, out of forty-three points presented, three are found of this description. On the part of the respondent one is found, to wit, that the damages are not excessive.

. But it is to be observed that in the opening statement of the case, as printed on his points, the respondent’s counsel states explicitly that the cause “ now comes before the court upon a case upon an appeal from the judgment”

On the other hand, it is quite clear that the respondent nowhere suggests in his printed points, that the questions whether the verdict is against evidence, or whether the damages are excessive, were not open to discussion on the appeal.

It seems to us, upon an examination of the points, in a high degree probable, if not quite clear, that the parties both supposed that all the points presented might properly be discussed on the appeal there under argument.

But we are not prepared to establish deliberately by precedent, that if on an argument of an appeal from a judgment, a point is discussed without objection, which is not raised thereby, the appeal shall be thereby deemed modified.

Or that if a respondent’s counsel places on his own points one in answer to the appellant which is only pertinent to a motion for a new trial, that he thereby consents that the appeal be deemed converted into an appeal from an order denying such a motion.

We know that such mistakes, usually founded in an erroneous apprehension on the subject, and sometimes from uncertainty in the mind of counsel as to what questions the court will feel at liberty to consider on an appeal from the judgment, are of frequent occurrence. Probably not a term has passed since the Code of Procedure was adopted, in which more than one exam-pie of this description has not been exhibited. And when the court have had the notice of appeal before them, it has been very common upon receiving the printed points to call the attention of counsel to the distinction, and to pass over all points which are not addressed to the exceptions taken on the trial of the cause, or to the judgment rendered.

Upon a review of the affidavits submitted, and on examination of the points used, it seems to us quite probable that the counsel on the part of the appellant intended to raise by the appeal, the question whether the verdict was against evidence, and whether the damages were excessive; and hardly less probable that the respondent’s counsel supposed that those questions might properly be considered on an appeal from the judgment. But it is here to be noticed, that there was here an actual, appeal pending—that was an appeal from the judgment, and not an appeal from an order denying a new trial. The appearance of the respondent was, in fact, an appearance to answer to the appeal which had in truth been taken. Appearance—noticing the appeal for argument—and appearing in court to argue—and actually arguing the appeal,—all these, or any of them, neither expressly nor impliedly admitted that any other appeal in the cause was pending than an appeal from the judgment, nor gave the court jurisdiction of any other appeal. This is by no means the case above referred to, in which an appearance when no formal appeal has been taken—noticing it for argument—appearing in court, and actually and professedly arguing the matter as an appeal, it is suggested, might be deemed a waiver of notice of appeal.

But in the circumstances of this case the question comes down to the naked inquiry, whether if a respondent comes into comt, with the statement at the outset that the cause comes before the court on an appeal from the judgment, and yet besides discussing numerous exceptions that are properly to be considered, argues a question whether the damages are excessive, or the like, or permits the adverse party to argue, among others, similar questions, he is to be deemed thereby to waive any notice of appeal from the order denying a new trial, and to give the court jurisdiction to reverse that order.

We do not not feel at liberty so to hold.

The order appealed from must be affirmed.

Present, Bosworth, Hoffman, Slosson, Woodruff, and Pierrepont, JJ.