Malloy v. Wood

3 Abb. Pr. 369, 14 How. Pr. 67

Opinion

By the Court,

* Hoffman, J.

The case was before the court on a former occasion, when a verdict was given for the plaintiff against both defendants, upon the contract set forth. Upon a motion for a new trial, the judge at special term decided that there was not the least evidence to charge the defendant Brown with the liability alleged; and he held that the question, whether Wood could be charged separately, or whether there was evidence so to charge him, could not be determined by the court, on that application. A new trial was then ordered. Upon that trial, the plaintiff’s counsel, after resting, moved to amend the complaint so as to make the same conform to the proofs, and to discontinue the suit as against the defendant Brown. The counsel of the defendant Wood objected, but the judge granted the motion, and the defendant Wood excepted. The court thereupon dismissed the complaint as against the defendant Brown, with the consent of the plaintiff’s counsel.

The counsel for the defendant Wood moved to dismiss the complaint as against the defendant Wood, upon the grounds stated in the case, which was denied, and the counsel for that defendant duly excepted. • Pío witness being called for the said defendant, the court ordered judgment for the plaintiff against the defendant Wood, for the sum of $71 89, subject to the opinion of the court at general term, upon a case to be made.

The judgment or order which was made was as follows. ■“ This cause having been tried by the court without a jury, by the consent of the parties, after hearing counsel, &c., it is ordered that the complaint in this action be, and the same is hereby dismissed as against the defendant Constant H. Brown, and the court ordered a judgment for the plaintiff, for $71 89, against the defendant Reuben R. Wood, subject to the opinion of the court at general term, upon a case to be made by the defendant Wood. And it is ordered that until the hearing and decision of the general term upon said case, the entry of such judgment be suspended; either party to be at liberty to turn -said case into a bill of exceptions.”

The counsel for the plaintiff made no objection as to the manner in which the case is brought before the court, and although the question occurred to the judges, the argument upon the merits was allowed to proceed.

But we apprehend that the case is not regularly before the general term at all. Where a cause is tried by a judge without a jury, it cannot be referred to the general term for its decision, primarily, upon matters of fact or matter of law. The former practice of taking a verdict subject to the opinion -of the court, and the practice now prescribed by section 265 of the Code, in trials with a jury, is inapplicable to a cause like the present.

Section 268 regulates the course of proceeding on cases of a trial by the court without a jury. It is clear that there is but one mode of obtaining a review of any decision on such a trial, whether during its progress or at its close. That mode is by an appeal. Such appeal, by section 348, may be upon the law, or it may be upon the fact. The appeal in the latter case terminates with the decision of the general term. In the former it may be carried to the Court of Appeals, (§ 268). The appeal which is thus to be made presupposes a judgment. The judge must determine the issues tried by him absolutely, or by directing a reference, or issues, as he is empowered to do. There must be a judicial determination, either final, or what used to be termed “ interlocutory,” and an appeal from that.

In the present case, there was no judgment and no appeal. The order suspended the entry of judgment, and left it to the general term to pronounce one in the first instance. This we think was irregular.

In several late cases, Brewer v. Isish, (12 How. Pr. R., 471; Hunt v. Bloomer, lb., 567; Johnson v. Whitlock, lb., 571), the course of proceeding under the Code, before a judge without a jury, or before referees, is pointed out. The decision of the judge or referee is distinguished from the judgment which is entered upon it. Without a judgment, no review can be had at the general term. The case is then to be made as directed by section 268, and Rule 15. But in it the judge is to-have inserted his finding of facts and conclusions of law, and he is to settle the same. The exceptions, if any, taken during the trial, are also to be contained in the case. Then the record contains the judgment, the appeal, the exceptions of' each defendant, and the evidence material to the exceptions.

We have decided in this court, that the time to take an appeal from the judgment at special term may be enlarged by the court, even after the expiration of the time allowed by the Code. The time to file an exception to the judgment may no doubt also be thus extended under section 67, after the usual time. It is in our power to remit the present case to the special term, for the judge who heard it to give a judgment absolutely, and then an appeal and exceptions may be taken by either party. If the respective counsel will consent that a. judgment be entered in favor of the plaintiff, and an appeal and exception be entered mmc pro timo, we will proceed to' decide the case on the merits, otherwise an order to remit the cause to the judge at special term, for his decision and judgment, must be entered, and the appeal dismissed, without costs. The consent to be filed within four days, or such order to be entered.

Present, Oakley, Ch. J., and Hoffman and Slosson, J. ,J.