Hein v. Hein

This was an action for divorce, the issues in which were framed and sent to a jury for trial. A verdict was rendered by the jury in favor of the plaintiff as to certain of the proposed issues, and upon that verdict the case was brought on for trial at Special Term and a judgment of divorce granted. At the close of the trial before the jury, the defendant moved *250to set aside the verdict and for a new trial, which motion was denied by the court, but no order was entered. After final judgment was entered, the defendant discovered that no order had been entered oh the motion for a, new trial and consequently there was no appeal from that order, so he applied to the justice who had presided at the Trial Term, and an order was entered on the 8th day of June, 1911, denying the motion; whereupon the defendant also appealed from that order. The defendant then made a motion to resettle the record on appeal by inserting therein the order denying the motion for a new trial and the appeal therefrom. In the meantime the justice who had granted the final decree had resigned, and this application to resettle the record ón appeal came on before him after he had ceased to be a justice of the Supreme Court, and was by him granted; and from his order granting that appli- . cation this appeal is taken.

It is clear that this order was a nullity. It assumed to have been entered by direction of .a justice of the Supreme Court, but it appeared from the order itself that the application was made to a gentleman who had ceased to be a justice of the ■ Supreme Court, and he occupied no official connection with it. . The order purported to be an order of the- court, and it seems to have been entered by the clerk, but there was no direction to enter it by a justice of the Supreme Court, and there was no authority for the clerk to enter it. There appearing on the record what purported to be an order of the court but which was not authorized, the proper proceeding by counsel for the respondent was to move at Special Term to vacate it; but as there was no order of the Supreme Court which purported to be held by a justice of the Supreme Court, or the entry of which was directed by such justice, there was no order from which an appeal could be taken. It is also clear that the motion to amend the record should have been made at the Appellate Division, and not at the Special Term or to the justice who tried the case; the situation being that two appeals were pending, one from the judgment entered upon the decision of the court at the Special Term, and the other from the order denying the motion for a new trial. These two appeals could be brought on separately, or could be consolidated and *251heard at one time upon the same record. The record on one appeal having been filed in this court, if either party wished both appeals heard together on the same record, the proper method was to move this court to consolidate the appeals and have them both made upon one record, in which case the court could have ordered the record on the appeal from the judgment to be amended by adding to it the order of the Trial Term denying the motion for a new trial and the notice of appeal therefrom. But as there' is no valid order from which an appeal can be taken, this appeal is a nullity, and it will, therefore, be dismissed, without costs.

Present—Ingraham, P. J., McLaughlin, Laughlin, Clarke and Miller, JJ.

Appeal dismissed, without costs.