Ford v. David — 3 Abb. Pr. 385

Majority

p. 385

FORD a. DAVID.

New York Superior Court;

General Term, October, 1856.

Headnote

Appeal.—Order.—Judgment.—Stay of Proceedings.

A decision at special term, overruling a demurrer to a complaint, and giving leave to answer, is, while the privilege given to answer is continuing, an order and not a judgment.

A decision of the general term which merely affirms such order, in a case where the complaint is one upon which the court must subsequently decide at special term what is the nature and extent of the relief to be granted, is itself an order.

An appeal from such a decision of the general term, to the Court of Appeals, although accompanied by the undertaking prescribed by section 334 of the Code, does not stay the proceedings upon the part of the plaintiff.

An application for a stay of proceedings in such a case, and under such circumstances, should be denied.

Appeal from an order made at special term, denying a motion by defendant, for an order staying plaintiff’s proceedings.

This action was originally brought by Ford against David and Turner only, as defendants. They answered; and their answers disclosed a state of facts, existing when the action was commenced, which rendered it proper, in the plaintiff’s view of his rights, that he should join two other defendants, Townsend and Johnson, and which entitled him to relief against them. An order was granted, authorizing the plaintiff to make these persons parties by a supplemental complaint. This was done.

The complaint sought equitable relief;—viz., a judgment that the defendant David should pay a certain sum to plaintiff ; that this sum should be declared a lien upon certain property mentioned in the complaint; and that the defendants Townsend and Johnson, who had been severally and successively owners of such property, should be declared liable for the same sum, and directed to pay it out of the proceeds of such property, in default of collecting it'from the defendant David.

Townsend and Johnson severally demurred to the original

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and supplemental complaints. Turner also demurred to the supplemental complaint; while David omitted to answer it.

The demurrers stated various grounds;—among others, that there was a misjoinder of causes of action,—that there was a misjoinder of parties,—and that no cause of action was shown against either of the defendants, by the complaint.

The demurrers were overruled at special term, in March, 1855, with liberty to the demurrants to answer upon terms. That decision was affirmed upon appeal to the general term, in October, 1855. The time to answer having expired, the action was noticed, for trial at the June special term, 1856, on the issues of fact, and notice was given to the demurrants, that at the same time, application, as against them, would be made for the relief demanded by the complaint. The action was then tried, the demurrants appeared, and were heard, and various exceptions were taken by them to the proceedings then had. The special term decided that the plaintiff was entitled substantially to the relief demanded by his complaint.

The demurrants appealed to the Court of Appeals, from the decision of the general term affirming the order overruling the demurrers, and gave the statutory security for costs only. They obtained an order staying proceedings and granting time to make a case to review the proceedings had at special term on the trial of the action. A case was made and served, and amendments were proposed by plaintiff. Before the hearing could be had on such case, the plaintiff threatened to docket the judgment which had been entered on the final hearing at special term, and issue execution. The demurrants then moved at special term, before Mr. Justice Slosson, for an order staying all proceedings on the part of the plaintiff until the decision, by the Court of Appeals, of the appeal from the decision of the general term. That motion was denied and an order to that effect entered.

From that order the demurrants now appealed.

S. Sanxay, for appellants.

W. W. Northrup, for respondent.

If the defendants have ap

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pealed to the Court of Appeals, from a decision from which an appeal can be taken to that court, and given security which the statute declares shall operate as a stay, no order of this court was necessary to prevent the plaintiff from proceeding further pending that appeal. It would perhaps be a sufficient ground on which to dispose of this appeal, that it was premature to invoke the action of the court, to prevent a proceeding from being taken in the progress of the action, which if taken and irregular the court would set aside. It is not usual to obtain an order prohibiting a party from taking an irregular proceeding.

But we think the order appealed from was right on another ground. The decision of the general term from which an appeal has been taken to the Court of Appeals, is an order, and not a judgment,. Ho appeal to that court can be had from such an order. It is not a final order, from which an appeal lies to that court.

The Court of Appeals will, of course, determine that question for itself, when a motion shall be made to dismiss the appeal, or when the argument of that appeal shall be moved. But as this court is asked to stay proceedings, on the ground that an appeal has been properly taken, and the requisite security to effect a stay given, it must judge for itself, in disposing of the motion, whether a case is made which justifies it in interfering.

The defendants insist that the decision of the general term from which they have appealed, is a judgment, within the meaning of that word as defined by the Code. We think that viewis clearly erroneous.

The decision made at special term, overruling the demurrer put in by these defendants, was an order and not a judgment. {Code, § 349, subd. 2). The decision by the general term, affirming it, was also an order as defined by the Code. (§ 400). A judgment is “ the final determination of the rights of the parties in the action.” (§ 245).

The decision on the demurrer was interlocutory. It determined the plaintiff’s right to recover something, or to have some relief, and that the defendants were proper parties, but nothing as to the precise nature or extent of the relief to be

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granted. The opinion given may have covered more ground, but the order entered determined only that. The nature and extent of the relief to be granted could only be determined by the court at special term, on notice to the adverse party, and on proof of such facts as might be necessary to enable the court to give a proper judgment. '(Code, §§ 269, 246, subd. 2.) The determination thus made, specifying the whole relief to be granted and all questions involved in the action, and nothing less than that, is a judgment as defined by section 245 of the Code. It is only from the judgment of the general term affirming that determination, or from a general term judgment of the merits of the action, and of all questions involved in it, that an appeal can be taken to the Court of Appeals. (Code, § 11, subd. 1 & 2; Paddock v. Springfield Fire & Marine Insurance Company, 2 Kern, 591; Beebe v. Griffing, 2 Seld. 465 ; Swarthout v. Curtis, 4 Comst., 415).

Upon an appeal to the Court of Appeals, the clerk of the court below is required to transmit to the appellate court a certified copy of the judgment roll. (§ 328). This cannot be done until there is a judgment declaring the. precise relief to which the plaintiff is entitled, and a judgment roll has been filed. By Rule 2 of the Court of Appeals, unless the appellant cause this return to be made and filed within twenty days after perfecting his appeal, the respondent on filing an affidavit, stating when the appeal was perfected, and a certificate of the clerk that no return has been filed, may enter an order dismissing the appeal, with costs. It is the policy of the Code to allow but one appeal in the same action to the Court of Appeals, unless a new trial shall be ordered by the latter court after a final judgment has been rendered.

The affidavits on which the order appealed from was made, show, that on the application to the court for the relief demanded by the complaint, Townsend and Johnson appeared and were heard. That since judgment was pronounced on that application, the defendants obtained time to make a case and a stay of all proceedings on the part of the plaintiff, except settling, entering and perfecting the judgment. That the defendants have since served a case, to which amendments were proposed by the plaintiff

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Instead of its appearing that there are no questions in the case which can be further litigated, except the question whether the demurrers were well taken, it distinctly appears that questions have been raised in the proceedings subsequent to the order of affirmance by the general term, that the defendants have a right to be heard in respect to those questions, and that they have initiated proceedings to obtain a further consideration of them, and that such proceedings have not been abandoned. We are clearly of opinion that the defendants are not in a condition to prosecute the appeal they have taken to the Court of Appeals. There is therefore no propriety in interfering to stay the plaintiff’s proceedings in consequence of such appeal, and the order appealed from must be affirmed, with ten dollars costs.