Hall v. Emmons — 9 Abb. Pr. 370

Majority

p. 370

HALL against EMMONS.

Court of Appeals;

October, 1870.

Headnote

Renewal oe Motion. — Motion Renewed on Discretionary Grounds.

The rule that a motion denied by one judge cannot be renewed before another on the same facts, without leave, does not apply to the case of an application to the discretion of the court to allow bail to surrender as matter of favor, upon excuse for delay, after an application for exoneration as matter of right has been denied on the ground that the strict time had passed.

Appeal from an order.

Asa Hall sued John Emmons, Jr., James L. Paine, and Hanford Smith on an undertaking of bail given by them in a previous action against Paine, to procure his discharge from arrest in that action. The summons was served July 17, 1869, and the complaint August 2. Immediately thereafter, but more than twenty days after the service of summons, Emmons and Smith surrendered Paine, and then moved for a discontinuance of the action, and release of their liability as sureties. The motion was denied, with costs, by Mr. Justice MoCunn.

Defendants then moved again ; this time on affidavits of attorneys, that the action was commenced in the absence of defendants’ attorney, and that the attorney who acted for him demanded a copy of the complaint immediately on receiving the summons, but had no knowledge of the nature of the suit, until the com

p. 371

plaint was received ; and that Paine was insolvent; that defendant’s attorney supposed he had twenty days from service of complaint in which to surrender, and that the motion was denied by Mr. Justice McCuhh, as deponent believed, on the ground that Paine was not surrendered within twenty days. This second motion was heard by Mr. Justice Barbóle, who granted an order allowing Paine to be surrendered within ten days.

On appeal, the order was reversed at general term, on the ground that the second motion was irregular, without previous leave to renew. The decision is reported in 8 Abb. Pr. A. S., 449.

The defendants appealed to this court.

N. Hill Fowler and Alexander H. Reavey, for the appellants.

I. The decision of a preliminary objection is not a bar to hearing the merits on a second application on the same facts.

II. The two motions are not alike.

Stephen A. Walker, for the respondent.

I. The order is not appealaole. Its effect is only to deny leave, in the discretion of the court, to surrender, which does not affect a substantial right.

II. The order entered on the first motion was a complete preliminary objection to the second (see authorities in opinion of the court below).

III. It makes no difference that the relief granted on the second motion, was not specifically asked for on either.

The Code of Procedure (§ 191), provides in one clause that bail may surrender their principal within twenty days after the commencement of the action to charge them on their undertaking. The defendants’ attorney, mistaking the

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practice, supposed that this twenty days began t'o run from the time of serving the copy of the complaint. The principal was surrendered within that time. Upon this erroneous supposition, the first motion was made, as one of right. It was denied, because thus made.

The defendants’ attorney confessing his mistake in affidavits, the defendants then moved the court for the exercise of its discretion as a matter of favor, in their behalf, under the last clause of that section. As matter of favor,> the court, in the exercise of its discretion, made the order that the bail might surrender their principal in ten days.

The court at general term were right in their view of the practice, but two motions for the same object cannot be made upon the same state of facts,'-where the first has been denied, without leave to renew having been given or reserved. But they erred in applying that rule to this case.

The order of the general term must be reversed, with costs to the appellants.

All the judges concurred.

Order of the general term reversed, and that of the special term affirmed, with costs.