Star Fire Insurance v. Godet

The order of May 15, 1871, requiring defendant’s attorneys to attend before the justice making the same, on May 17, “for the purpose of resettling the order of May 10, granted in exoneration of the defendants’ liability on the undertaking prosecuted in this action,” was not merely an order to show cause, or equivalent to a notice of motion," but an absolute direction to appear for the purposes of a resettlement; and as the questions arising under *366the same were argued and the judge took the papers and reserved his decision, the order of May 10 became thereby re-opened for farther consideration, and until the rendition and .entry, in the form of another order, of the said judge’s final decision, it stands without force or effect.

The subsequent indorsement made upon the papers by the said judge over his initials, to the effect that he cannot disturb the first order, is not sufficient to restore the latter to life, fío order is complete, so that an appeal can be taken from it, until it is entered and the motion papers are filed (Smith v. Dodd, 3 E. D. Smith, 215).

Even in the case of a formal order it has been held that the written direction of the judge at the foot of the order, “Enter this,” will not suffice for the purpose of appeal, but actual entry must be made (Whitaker v. Desfosse, 7 Bosw. 678).

The order in this case should be reentered in conformity with the decision made by the judge who ordered it to be resettled, and a copy of it served. And as the court never allows a party to be prejudiced by its own delay, the thirty days, within which an appeal may be taken under section 332 of the Code, must be deemed to run from the time of the service of the written notice of such order, after re-entry (Bowman v. Earle, 3 Duer, 691).

If I am correct in these views, it follows that plaintiff’s motion, made at a special term held by another judge, so far as it prayed for the vacation of the order of May 10, and for its re-entry as of the date of such re-entry, was properly denied as an unnecessary application.

Upon the other branch of the case I will point out, although my associates express no opinion upon it, that the Code substantially re-enacted the law in regard to exonerating bail as it stood at the time of the adóp*367tion of the Code (2 Rev. St. 380, as amended by chap. 231 of Laws of 1845 ; Levy v. Nicholas, 19 Abb. Pr. 282; S. C., 1 Robt. 614). Under the former practice the bail could, as a matter of right, at any time pending the suit, or before the return of the ca. sa. against their principal, surrender him in their discharge, and could plead the render in any action against them.

The court also, as matter of favor, allowed the bail a further time, after the return of the ca. sa. In such case, if the plaintiff proceeded against the bail by action of debt, the bail had eight entire days in full term, next after the return of the process against them, wherein to render their principal; or where the suit against them was by declaration, eight days after the service of the declaration. And after the expiration of the eight days allowed ex gratia, the bail could, in a proper case, obtain a further extension. Any allowance, however, of further time, after the return of the ca. sa., being mere matter of favor, could not be pleaded, but the bail could have the full effect of it upon the motion. Pleas by bail in bar of the suit brought against them were regulated by the statute, but a render after suit was not permitted to be thus pleaded.

In analogy to that practice which is still in force so far as it is not inconsistent with the provisions of the Code, a surrender by bail of their principal, under section 191 of the Code, within twenty days after the commencement of the action against them, or within such further time as may be granted by the court, cannot be set up as a defense, by way of answer, to defeat plaintiffs’ cause of action, which has fully accrued before the surrender. Whatever relief the bail may be entitled to' by reason of such surrender, whether in the shape of a discontinuance of the action against them upon or without terms, or otherwise, must be applied for and obtained on motion and on notice to the plain*368tiff (see Hayes v. Berryman, 21 How. 143; Davidson v. Taylor, 12 Wheat. 604). Consequently, the court, at special term, had the power to grant, and perhaps might have granted, provided the application had been regular, that part of plaintiffs’ motion which prayed for the setting aside of the answer alleging, as a defense, the fact of the surrender after the commencement of the action. But the denial of such relief does not constitute error in this case (1), because the .application was not distinctly made on the ground here suggested, and (2) because, although made on the ground of irregularity,^plaintiffs’ notice of motion did not state the irregularity complained of, as required by the rule. Upon an appeal from an order denying a motion to set aside proceedings for irregularity, if the irregularity is not stated in the notice of motion, the appellate court may presume that the motion was denied for such defect in the notice (Lewis v. Graham, 16 Abb. Pr. 126).

For these reasons the order appealed from should be affirmed, with costs.

(concurring in the result, but dissenting from the grounds on which the court puts it) The motion to set aside the answer must have been founded upon section 152 of the Code, which authorizes the striking out of sham and irrelevant answers. The facts set up in this answer were sufficient, if true, to *369constitute a defense to the action, and they were fully proven by the papers read upon the motion. The principal debtor had been surrendered to the sheriff, and an order had been made exonerating the sureties ; and that order had not been countermanded or vacated. The pleading, therefore, was neither sham nor irrelevant.

Cases may be supposed, probably, where a party would be held excusable for his omission to take bis appeal from one order in due time,’ because he had obtained an order directing a resettlement, or a re-i argument, and had, at least, reasonable ground for believing that he would then be entitled to an essential modification or change of such original order. If, for I instance, a palpable error had been committed in drawling up and settling the original order in this case, [either in form, or because it was so drawn as to be too [inexact, or to contain more or less than had been [decided by the court, that, probably, would have been [sufficient to entitle the plaintiff to rely upon his motion cor a resettlement, and to excuse his failure to appeal, but, although the order of the judge at chambers required the defendants to show cause why the order of Ike court should not be resettled, and only that, it is pot pretended by the plaintiff’s counsel that such order Ivas irregular in form, or inexact in its terms, or that it liffered in any manner from the decision of the court. |o, too, if the plaintiffs ha$ obtained an order directing the defendants to show cause at a special term of the lourt why the original motion should not be reheard |r re-argued there, and had shown by his papers that pine important question to which the attention of the lourt was directed, had been left undetermined, or that ■une recent decision of importance, not then known to lie court or counsel, had been found, it may be that le pendency of such order to show cause would have Irnished such an excuse for the plaintiffs’ omission to *370appeal as would have justified the court in directing the original order to be vacated and again re-entered, in order to afford the plaintiffs another opportunity to appeal. But, although the papers before us seem to intimate that the plaintiffs’ counsel supposed he had a right to treat the order to show cause why the order should not fee resettled, in some sort, at least, as an order for a reargument, he ought to have considered, first, that an order of a judge at chambers providing for a resettlement before him of another order of the court, was not an order for a rehearing before the court; and, secondly, that a judge, sitting at chambers and not as a court, had no power to hear or reheai a motion which belonged to the court alone to determine, or to modify or change any order made by tin court and entered of record. The plaintiffs, therefore were wholly without excuse, as I understand it, fo: their failure to appeal from the first order in due time and, for that reason, the court was right in denying their motion to vacate such order and re-enter th same.

The order appealed from should be affirmed, wit costs.

I concur in affirming the order on the ground first stated in the foregoing opinion, namely, that the order of May 10 was in fieri by reason of the order of the 15th. Upon the decision of the motion on the last order, it became necessary to re-enter the first order. That not having been done, the last motion was unnecessary. It is still in time to enter such order, when an appeal from it can be taken within the proper time.