Ogden v. Lee

In Spaulding v. Congdon, 18 Wend. 543, cited by the counsel for the Defendant, the Plaintiff was non-suited at the circuit. *155He made a bill of exceptions, and the proceedings in the cause was stayed. Before argument the Plaintiff died, and the court permitted the judgment to be entered as of a day while he was living. The same was done in Gurney v. Parks, 1 Howard’s Sp. T. R. 140.

In Rightmyre v. Durham et al. 12 Wend. 245, the Plaintiff obtained a verdict; a bill of exceptions was taken; and before argument one of the Defendants died. The court in that case allowed judgment to be entered nunc pro tunc, against both Defendants. They say, “ when a Plaintiff obtains a verdict, thus establishing his cause of action, and one Defendant dies while the cause is sub judice, and he is thus stayed from perfecting his judgment, there is no reason why he should be confined to his judgment against the survivor instead of both Defendants.” Dunlop says: “If either party die after a special verdict, and pending the time for argument or a hearing therein, or a motion for a new trial or other proceeding, whereby the entry of the judgment is suspended, judgment may be entered nunc pro tunc, as of a time when the party would have been entitled to it on the return of the postea. That the delay arising from the act of the court may not turn to the prejudice of the party.” (2 Dunlop, 749.)

To entitle a party to such judgment, the delay must arise from the act of the court. The right to have the judgment must be determined during the life of the other party, and the court will not permit that right to be lost by its own delay.

It is contended that this case comes within these principles. It is said that the judgment in the second cause was delayed by the writ of error in the first. It was noticed and the parties ready for argument before Lee’s death, and it is immaterial whether the delay is voluntary on the part of the court or occasioned by the amount of business which was entitled to preference. I find no decision or authority going this length. In Bates v. Lockwood, 1 T. R. 637, the Plaintiff had recovered a judgment in K. B. and brought a second suit on the judgment in the same court. The Defendant pleaded nul tiel record in the second suit, and brought a writ of error upon the judgment in the first, and though the court stayed proceedings in the second suit till a decision on the writ of error, before the decision the defendant died, and the Plaintiff moved for judgment nunc pro tunc, in the second suit. The court say, that is permitted only in cases where the delay has proceeded from the court; “ but where the party proceeds according to the common course of the law, by bringing a writ of error, then the court cannot interfere.”

*156But in this case there has in fact been no stay of proceedings by the court. Before any trial, and before any right of either party had been determined, the parties agree to stay the proceedings until the decision of another cause. The consequence is the cause abates, and the motion is denied, but without costs.