Miller v. Franklin

New York Supreme Court

Miller v. Franklin

13 Wend. 656

CourtNew York Supreme Court

DecidedMay 15, 1835

StatusPublished

Cited by1 cases

This text of 13 Wend. 656 (Miller v. Franklin) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Franklin, 13 Wend. 656 (N.Y. Super. Ct. 1835).

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Opinion

By the Court,

Savage, Ch. J.

Before the act of April 18, 1832.no decision of this court, or of a circuit judge could be reviewed in the same court after judgment perfected. It was then absolutely necessary to obtain an order to stay proceedings, in order to move for a new trial. The act of 1832 made a change in this practice, and permitted such motions to be made, notwithstanding judgment and execution; and the first section provides for restitution by the supreme court,after a hearing, in the manner afterwards mentioned. That manner is prescribed in the fourth section. After the decision of [657]*657the circuit judge, the party dissatisfied may appeal, by doing one of two things: The bond must be executed as mentioned, or an order to stay must be obtained. Both are not necessary; either is sufficient. Although a bond is given, judgment may be entered. If an order to stay is granted, judgment cannot be entered; but if there can be no appeal without both an order and a bond, then there can be no judgment to set aside, according to the first section, for none can be entered. This is the view taken of the act in May, 1832. The fourth rule of that term provides that the party intending to appeal shall, within eight days, procure an order, &c., or file the bond required, and give notice, &c.; and either party may thereafter notice such cause for argument. This was modified as to the time at the July term, 1835, but in no other respect; and this corresponds with the decision in Outwater v. Marshall, 12 Wendell, 241. The very point of that decision was, that the bond alone was not a stay of itself, thereby construing the statute in the alternative, as to the right of appeal. The last clause in the 7th section of the act cannot be construed so as to enable a party to stay proceedings, by merelygivingsecurity for the costs; and there is no reason why a party should give security when he has an order, unles the statute was positive.

The order, in this case, was regularly granted, and tho motion to vacate should be denied.

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By the Court,

Savage, Ch. J.

Before the act of April 18, 1832.no decision of this court, or of a circuit judge could be reviewed in the same court after judgment perfected. It was then absolutely necessary to obtain an order to stay proceedings, in order to move for a new trial. The act of 1832 made a change in this practice, and permitted such motions to be made, notwithstanding judgment and execution; and the first section provides for restitution by the supreme court,after a hearing, in the manner afterwards mentioned. That manner is prescribed in the fourth section. After the decision of [657]*657the circuit judge, the party dissatisfied may appeal, by doing one of two things: The bond must be executed as mentioned, or an order to stay must be obtained. Both are not necessary; either is sufficient. Although a bond is given, judgment may be entered. If an order to stay is granted, judgment cannot be entered; but if there can be no appeal without both an order and a bond, then there can be no judgment to set aside, according to the first section, for none can be entered. This is the view taken of the act in May, 1832. The fourth rule of that term provides that the party intending to appeal shall, within eight days, procure an order, &c., or file the bond required, and give notice, &c.; and either party may thereafter notice such cause for argument. This was modified as to the time at the July term, 1835, but in no other respect; and this corresponds with the decision in Outwater v. Marshall, 12 Wendell, 241. The very point of that decision was, that the bond alone was not a stay of itself, thereby construing the statute in the alternative, as to the right of appeal. The last clause in the 7th section of the act cannot be construed so as to enable a party to stay proceedings, by merelygivingsecurity for the costs; and there is no reason why a party should give security when he has an order, unles the statute was positive.

The order, in this case, was regularly granted, and tho motion to vacate should be denied.

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Bluebook (online)

13 Wend. 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-franklin-nysupct-1835.

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