In re Dunn

37 N.Y. St. Rep. 802

Opinion

Dwight, P. J.

Although we prefer to determine this appeal on the merits, we are unwilling to sanction the practice adopted by the appellant in bringing the appeal from an order granted ex parte. The statute relating to appeals to the general term from orders made in actions in the supreme court expressly limits such appeals to the case of orders made “ upon notice.” Code Civ. Pro., chap. 12, title IV, §§ 1347, 1348. Sections 1356 and 1357 of title V of the same chapter provide for appeals from orders in special proceedings, whether made at special term or, as in this case, by another court of record of original jurisdiction; and § 1360 applies to all such appeals the general provisions of title IV, including, apparently, those of §§ 1347 and 1348 above referred to. This establishes a uniform practice in respect to all appeals from orders, whether in actions or in special proceedings, and whether made at special term or by an inferior court. Under a practice so regulated an order made ex parte can be reviewed, in the first instance, only by a motion, on notice, to vacate or modify it, and the order granting or denying that motion is open to review by appeal. So in the case of In re Johnson, 27 Hun, 538, the general term in the third department held that an appeal did not lie from an order made ex parte by a surrogate’s court, saying: “The proper course is to move on notice to vacate an ex parte order. If the motion is denied an appeal may lie; but unless both parties have been heard by the court below there is not such a decision between them as we should be asked to review.” See, also, People v. Com. Council of Buffalo, 30 Hun, 636. The case of Lancaster v. Boorman, 20 How., 421, was decided under the former Code of Procedure, and upon the ground of the particular language of § 349 of that statute. That section has been replaced by § 1347, supra, of the Code of Civil Procedure, which, as we have seen, expressly confines appeals from orders to such orders as have been granted on notice. The cases of Finck v. Mannering, 46 Hun, 323; 12 N. Y. State Rep., 453, and Billington v. Billington, 16 Civ. Pro., 56, were cases of orders which adjudged parties in contempt and were presumably made on notice; but whether so or not, the cases were decided under a special provision of the Code, § 2433, applicable to supplementary proceedings only.

We are of opinion, therefore, that this appeal might properly be dismissed; but in order to avoid further protraction of a proceeding which ought to be speedily concluded, we think we should dispose of this appeal on its merits.

On the 10th day of November, 1890, on the petition of the respondent, Fanny Dunn, a commission was duly issued out of the county court of Wayne county, directed to a sole commissioner, to inquire concerning the alleged lunacy of Harrison Dunn, the appellant In pursuance of the direction of such commission the commissioner duly issued his precept to the sheriff, commanding him to summon the necessary jury, to be and appear before the commissioner, at a place named, oh the 22d day oí ¡November, 1890, at 9 o’clock A. m. On that day, and before the hour named, the sheriff made return to the commissioner oí the execution of such precept, containing the names of twenty-four jurors duly summoned by him.

On the same day, and before the hour named for the appearance of the jury, an order of the same court which issued the commission was served on the commissioner staying all proceedings in the matter until the hearing and decision of a motion on behalf of the alleged lunatic to set aside and vacate the proceedings so far had therein; notice of which motion, by an order to show cause for the 2d day of December, 1890, was served with the ■stay. Accordingly no step in the proceedings subsequent to the return of the precept by the sheriff was taken on the 22d day of ¡¡November; the jury was not convened or sworn, and no adjournment was made of the proceeding.

The result of the hearing on the order to show cause, on the 2d day of December, was the denial of the motion on the behalf of the alleged lunatic, and the stay of proceedings was thereby dissolved. Thereafter, and on the 4th day of December, on the ecc parle application of the petitioner and an affidavit showing the facts above stated, the same court made an order directing the commissioner to issue his precept to the sheriff requiring him to notify the same jurors previously summoned and returned by him to appear before the commissioner at a time and place to be named in such precept, to make the inquiry mentioned in the commission and in the former precept It is from that order that this appeal was taken.

We áre unable to see that there is any valid objection to the order. The situation was anomalous, and called for measures not prescribed by the statute. Here was the commissioner with a valid commission in full force; a precept duly issued to the sheriff, and returned by him; jurors duly summoned, and their names returned to the commissioner, but the day fixed for their meeting was past, and there had been no adjournment to a later day.

It is very clear that the proceeding has not abated, nor the commission lost its force. The only question is how shall the commissioner obtain a jury by means of which to prosecute the inquiry committed to him? He has no power to compel the attendance of jurors at a time later than that for which they were summoned, and he cannot issue a new precept, because his authority in that respect was spent by its exercise in the first instance. He has resort, therefore, to the source of all authority in the premises, viz., to’the court which alone has jurisdiction of the proceeding. Then,‘it would seem, two courses were open; either to empower the commissioner to issue a new precept to summon a new jury, or to direct him to reconvene the jury already summoned. The latter course was adopted, and it seems to us to have been the least objectionable of the two. We are unable to see that it was to the prejudice, in any manner, of the rights of the alleged lunatic, nor that it was in contravention of any rule of the statute, or of the practice. It was an exercise of discretion on the part of the court to meet an exigency not provided for by the statute; but in it no provision of the statute was contravened or disregarded. It was the same jury, selected by the sheriff, and not by the court, which had been originally summoned; the order objected to, in effect, simply supplied the place of the adjournment of the proceeding, which ought to have been provided for in the order to show cause.

We regard the order as substantially unobjectionable, as within the reasonable discretion of the county court, and one that should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Corlbtt, J., concurs; Macomber, J., not voting.