Hubbard v. Copcutt — 9 Abb. Pr. 289

Majority

p. 289

HUBBARD against COPCUTT.

Court of Appeals;

November, 1870.

Headnote

Amendment.—Power oe Special Term.—Time to Appeal erom Judgment mnsrc pro tumo.

The court at special term cannot modify in substance a judgment oí the general term, rendered upon a case presenting a verdict taken at circuit subject to the opinion of the court at general term.

If it assume to do so, a direct appeal from the judgment to the court of appeals, though taken within two years of such attempted amendment, is too late, if the time for appealing from the original judgment has passed.

The remedy of the aggrieved party is by appeal from the order, to the general term; or, if the time for such appeal be passed, by motion to set aside the order and all proceedings under it.

Motion to dismiss an appeal.

This action was brought by Mary Hubbard and others, plaintiffs and respondents, against John Copcutt and others, appellants.

On the trial at the circuit, a verdict was taken, subject to the opinion of the court at general term, on a case to be made. Judgment was ordered at general term; and afterwards, on evidence, and on motion at' special term, the court at special term modified the-judgment in material parts. This modification or amendment was ordered nunc pro tuno, as of the date-of the original judgment. No appeal was taken from the order directing this amendment, to the court at general term; but the present appeal was taken from the judgment, including the order of the special term amending it. The appeal was taken more than two years after the judgment, though less than two years after the special term order.

p. 290

A. J. Parker moved to dismiss the appeal.

Mr. Homer, opposed.

The appeal from the judgment was not brought within the time prescribed by law, and must be dismissed for that reason.

If the judgment had been amended in substance within two years before bringing the appeal, although the amendment was ordered nunc pro tunc as of the time of the original entering of the judgment, it might be questionable whether the right to appeal would not date from the entry in fact of the amended judgment, but that question is not before us. The judgment was given upon a verdict subject to the opinion of the court at general term upon a case made at the circuit. It was a general term judgment upon the case presented, and was not subject to modification or amendment by the court at special term, either upon the case as made, or upon additional evidence.

The court at general term could have reheard the case, and modified the original judgment as the facts might have warranted ; but they could only do so upon the case made at the trial. If further evidence was necessary to settle the rights of the parties and enable a proper judgment to be pronounced, it would seem that a retrial would have been proper.

But without definitely passing upon this question, it is sufficient to say that the court at special term had no power to alter and amend, upon new evidence, the judgment of the court pronounced at general term.

The order of the special term, however, is not the subject of an appeal directly to this court. The appeal should have been taken to the general term ; and the time for that appeal having passed, the only remedy is by motion in the supreme court to set aside the order

p. 291

and all proceedings under it; and that course is still open to the party.

But for the reason stated the appeal must be dismissed with costs.

All the judges concurred.

Motion granted with costs.