Clark v. Clark

By the Court,

The only question in this case is, whether a circuit judge can enlarge the time for preparing affidavits and giving notice of motion to set aside the report of the referees. I think this case falls within the principle of the 39th rule of this court, although it is not embraced within its terms. That rule provides, that the time for preparing a case,' bill of exceptions or demurrer to evidence, and the time for preparing amendments thereto, may be enlarged by the judge before whom the cause was tried, or by one of the justices of this court. The same reason and necessity for this power exist in the case of a report of referees, as in the cases particularly enumerated in the rule* Where, as in this case, the report is made but a day or two before the term, it would be extremely difficult, if not impossible, in many cases, to draw and serve the affidavits, and get an order to stay proceedings on the merits, before judgment would be perfected upon the report. If a judge in vacation cannot enlarge the time, it would frequently be necessary to stay *240the proceedings until a special motion to this court could be maje for the prpose, The expense and delay of this course of proceeding ought, if possible, to be avoided. A report of referees resem^esi m many respects, a verdict of a jury t and by the rules of July term, 1833, 10 Wendell, 536, where the parties differ as to the facts, they are to be settled by the referees, in the same manner substantially as a case is settled by a circuit judge. I see no objection, in principle, to extending to this case the 39th rule, and allowing the time for drawing the affidavit to to be 'enlarged by a circuit judge, or one of the justices-of this court. Graham’s Pr. 472. We have considered a report of referees as equivalent to a verdict, and proceedings- after verdict can be stayed only by a circuit judge, or one of the judges of this court. The plaintiff’s proceedings subsequent to the order must therefore be set aside; but as the point of practice may be considered new, the costs must abldte the event. The order of the judge must be considered as effectual and still in force.