Reynolds v. Freeman

6 Sandf. 702

• Court: The Superior Court of New York City
• Decided: February 13, 1852
• Status: Published

Opinion

Sandford, J.,

(with the concurrence of all the Justices.)— Section 849 of the code, as amended in July last, permits an appeal from a decision upon a demurrer, as from an order, as distinguished from a judgment. We suppose that under this provision, if a judgment have been perfected upon the decision of the demurrer, the appeal must be from such judgment, as formerly; but if no judgment have been entered, the party may appeal from the order of the judge sustaining or overruling the demurrer.

In this case, no judgment has been entered. The plaintiff was correct in appealing from the order, and on such appeals no security is required. (Allen v. Johnson, 2 Sand. S. C. R. 629.) Appeals from orders, according to our rules and practice, have heretofore been heard in the general term, on Saturdays only. If the appeals from orders allowing or overruling demurrers fall within the same class, the plaintiff was irregular in taking a default on the second day of term, which was Tuesday.

According to the 80th rule of the supreme court, demurrers are still, what they have always been deemed in our courts, enumerated motions, and such motions go upon the calendar, and are heard in their regular order. Then, as a calendar cause, the plaintiff was irregular in omitting to print the pleadings, &c., and furnish copies to the adverse party, as prescribed by rules 31 and 32 of the supreme court, and as was previously required in this court, by our general rule adopted May 26, 1849. In either view of the matter, -the plaintiff has erred in taking his default, and it must be set aside.

The court deem it a proper occasion to settle the practice on this subject. The appeal must be brought as already stated, if a judgment have been entered. Until judgment, it may be from the order drawn up -and entered in the minutes. If, however, the decision is final, giving no leave to amend or to plead over, it should be appealed from as a judgment in, all cases. Such appeals, whether from orders or judgments, are enumerated motions, and are to be placed on the calendar for argument; and the necessary papers are to be printed, served, and furnished, as are required in other calendar causes at the general term.