Clapp v. Graves — 9 Abb. Pr. 20

Majority

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CLAPP a. GRAVES.

New York Common Pleas;

General Term, April, 1859.

Headnote

Proceedings nuno pro tuno.—Delay of the Court.—Appeal to Court of Appeals in an Action commenced in a Justice’s Court.^[1]

Where an act is to be done within a certain time, in which the concurrence of the court is necessary, and a party has done all that he is required to do to obtain the decision of the court, he is not to suffer through the court’s delay;

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and if the court give their decision after the. time is passed, it may be entered up as of the time when, by law, it ought to have been given.

Under the statute requiring that to authorize an appeal to the Court of Appeals, from a judgment of the general term of the New York: Common Pleas, upon appeal from an inferior court, the general term should, by order duly entered, allow such appeal before the end of the next term after which the judgment sought to be appealed from was entered,—it is sufficient if the application of the party desiring to appeal is made and heard during that term; and though the court do not decide upon the application till a subsequent term, they may then order the application to be allowed, and the order entered as of the proper term.

Appeal from a motion to vacate an order allowing an appeal to the Court of Appeals.

After decision by the general term of this court of an appeal from the judgment of a justice, the unsuccessful party applied at the ensuing term for leave to appeal to the Court of Appeals, and having been heard, the court reserved their decision till the following term, when they granted the application, and -directed that the order allowing the appeal be entered rmno pro tuno, as of the preceding term.

The respondent moved at special term to vacate the order so entered allowing the appeal, on the ground that it was not actually entered within the time required by statute. The motion having been denied, he appealed to the general term.

To authorize an appeal to the -Court of Appeals, it is necessary, by the statute, that the general term should, by order duly entered, allow such appeal before the end of the next term after which judgment was entered. The appellant applied for such an order at the next term; both parties were heard, but the court did not announce its decision until the term was passed; but they directed the order allowing the appeal to be entered up as of the term when the application was made, being the next term after judgment.

It is a general rule that where an act is to be done within a certain time, in which the concurrence of the court is necessary, and a party has done all that he is required to do to obtain the decision of the court, that he is not to suffer through the court’s

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delay; and if the court give their decision after the time is passed, it may he entered up as of the time when, by law, it ought to have been given. “It is by no means unusual,” says Lord Kenyon in Pearson a. Rawlings (1 East., 405), “ to make entries of judicial acts mrncpro time.” And the reason is given in Crispe a. The Mayor of Berwick (Vent., 90), “ there being no default in the party, but a delay which came by the act of the court.” So in Craven a. Hanley (Barnes, 255), it is said per curiam, “ the party must not suffer by the court’s taking time to consider.” In Lure a. Rest (10 Mod., 30), a writ of inquiry was executed, and before the entry of judgment, which was delayed by the act of the court, the plaintiff died, and it was held by the court, that having delayed the entry of judgment, it should be entered up as of the proper term; and in Lord Mohun’s case (6 Mod., 59), a rule for the reversal of an attainder was obtained, upon the consent of the attorney-general, in the reign of James II.; and long after, in the reign of Anne, the court directed the clerk to make the entry which should have been made when the rule was obtained, declaring that they would supply the neglect or defect of their officer, that subjects should not suffer by it. And to the same general effect are numerous authorities. (Taylor a. Matthews, 10 Mod., 325; Tooker a. Duke of Beaufort, 1 Burr, 146 ; Mayor of Norwich a. Berry, 4 Ib., 2, 277; Astley a. Reynolds, 1 Stran., 915; Webb a. Spurrell, Barnes, 261; Toulmin a. Anderson, 1 Taunt., 385 ; Mackay a. Rhinelander, 1 Johns. C., 408; Blewitt a. Tregoning, 4 Adol. & E., 1002; 1 Leon, 187; Latch, 2; 1 Lig., 462; 1 Williams on Executors, 763 ; Tidd’s Practice, 932, 9th Lond. Ed.)

The motion below, therefore, was without foundation, the order allowing the appeal having been correctly entered, by order of the court, as of the September term.

Footnotes

* Present, Daly, F. J., Brady and Hilton, JJ.