Parmenter v. Roth — 9 Abb. Pr. 385

Majority

p. 385

PARMENTER against ROTH.

Court of Appeals,

November, 1870.

Headnote

County Judge’s Order.—Amendment.

Under an order to show cause; with a stay of proceedings until the decision of the motion, a decision terminates the stay, before the service of the order made thereon.

A county judge has no power to make an order in a cause in the supreme court, on a contested motion or order to show cause. His power is limited to a class of orders which by established practice may be made exporte, and to cases in which the applicant’s right is so clear that the judge is willing to grant the order exporte.

Where a county judge granted an order to show cause why an ex-parte order previously made by him should not be modified, and after hearing counsel for both parties, granted the modification,—Held, that the modification was ineffectual, because ordered on a contested .motion.

It seems, that a county judge, after having granted an extension of time to answer, may modify it, exporte, by annexing the condition that a particular defense shall not be pleaded; and if defendant avails himself of the extension as modified, he cannot interpose the excluded defense by subsequent amendment of course (Per Grover and Sutherland, JJ.).

Appeal from an order.

R. A. and F. J. Parmenter sued John and James C. Roth, in the supreme court, to recover for services and disbursements. A similar action was brought at the same time against John Roth alone.

The attorney for John Roth applied ex-parte to the county judge of Rensselaer county, and obtained orders extending the time to answer, ten days. The plaintiffs immediately applied ex-parte to the same judge, to modify his orders by inserting a condition

p. 386

that defendant’s answer should not set up the statute of limitations. The county judge did not grant the modification ex-parte, but ordered the defendant to show cause why he should not grant it, with the usual stay meanwhile ; and he heard counsel for both parties on the return of the order to show cause. Upon the last day of the extended time, he decided the motion in favor of the plaintiffs, and made an order directing that his previous order be modified by adding a condition excluding the defense of limitations. After the decision, but before service of the order, defendant served answers not containing that defense ; but within twenty days thereafter he served amended answers, which did contain that defense.

The plaintiffs returned the amended answers, and subsequently moved, in the supreme court, to have them set aside. The motions were granted, and defendant appealed to the general term, where the orders were affirmed.

The defendant then appealed to this court.

At the term at which the appeal was first heard, it was not finally determined, a re-argument being subsequently ordered. The following opinions were, however, then prepared, which are here presented, as showing the grounds of Mr. Justice Grover’s dissent upon the ultimate decision.

Grover, J. This is not an appeal from the orders of the county judge, extending the time for the service of the answer and the subsequent order modifying the same, but from the order of the general term affirming that of the special term, striking out that portion of the appellant’s answer setting up the statute of limitations as a defense. This last order was based upon the validity and construction of the former. Consequently, these are the questions involved in this case. The orders of the county judge being only collaterally in

p. 387

question, the inquiry as to their validity is simply whether he had the power of making them. They cannot be assailed in this way on the ground of irregularity, or the improper exercise of discretion in granting them. The latter questions could only be presented upon an appeal from the orders, or motion to set them aside.

The Code of Procedure (§ 403) gives to county judges the power of the judge at chambers, in actions pending in the supreme court. Section 405 provides that the time within which any proceeding in an action, after the commencement, except the bringing of an appeal, must be had, may be enlarged by a judge of the court, or, if the action be in the supreme court, by a county judge, as therein specified. .

This section clearly shows that the order extending the time is to be granted without notice to the opposite party. Section 324 provides that orders made out of court, without notice to the adverse party, may be vacated or modified without notice, by the judge who granted them, or may be vacated or modified on notice, in the manner in which other motions are made.

In the present case, the counsel for the appellant insists that the county judge, although he might have had power to make the modification of an order, upon an ex-parte application of the plaintiff, yet he had no power to make an order requiring the defendant’s attorney to show cause why it should not be made, and direct such order, together with affidavits upon which it was founded, to be served, and at the time specified to hear the motion for the modification, and determine the same. Should it be conceded that the counsel is right in this position, I do not see how it follows that the modification granted upon the hearing is invalid. The judge, under section 324, clearly had the power to vacate the order, or grant any proper modification thereof, upon the ex-parte application of the plaintiff,

p. 388

and this power was not lost in, case he saw fit, from great caution, to give the defendant an opportunity to show his objections, and the grounds thereof, to such modification being made. The mode of giving such an opportunity is immaterial. The plaintiff’s application was ex-parte. It was the judge who required that the defendant should have an opportunity of being heard.

The judge must be considered as acting under his power to do the act without notice to the adverse party, and the defendant cannot complain that while so acting, he gave him the right of being heard, which was not conferred by law.

The next inquiry is, whether the judge had power to attach any condition to the original order, extending the time to answer % If he had such power, it is obvious that he had the power, upon the application of the adverse party, subsequently, to modify it by attaching such condition.

The defendant having no absolute legal right to an extension of time for serving his answer, his applicatherefor was addressed to the discretion of the officer, to be exercised in view of all the circumstances; and in all such cases, the court, or officer, may grant the application upon such terms as justice may require ; the party applying for the relief being at liberty to reject it, if he considered the terms imposed too onerous. If relief is essential to his rights, he may reject the order; if he accepts it, have the terms reviewed by the court upon motion, and corrected if erroneous.

It follows that the county judge had the power to make the modification of the order, and we have already seen that if he possessed the power, we cannot upon this appeal examine as to its regularity oi propriety, as the order only comes in question collaterally.

The remaining question is, whether the appellant

p. 389

could avoid the condition imposed by the order as modified, by serving an answer in accordance therewith, and then'within the time allowed for amending the same, serve an amended answer setting up the identical defense prohibited by the order %

It is clear that he cannot. The limitation imposed by the order extended not only to the first answer served, but also to the amended, or any other answer, unless such answer be expressly allowed by the court upon proper application being made. I have not discussed the reasons assigned by the county judge, for making the modification, because the propriety of the order in that respect is not before us upon this appeal. The order appealed from should be affirmed, with costs.

Sutherland, J. The order of the county judge of September 24, modifying his order of September 14,, could not be reviewed, or attacked collaterally, by, or on the motion before Justice Hogeboom, to set aside the amended answers, containing the defense of the statute of limitations.

The order of September 24 could be reviewed, and could regularly only be reviewed, in the same manner as if it had been made by a judge of the supreme court (Code, § 403) that is, by appeal from, or a direct motion to vacate, the order.

Hor could the order of the county judge of September 24 be viewed as a nullity.

The attorney for the defendant did not treat it as a nullity, nor did he appeal from it or make a motion to vacate it. On the contrary, he served answers with the defense of the statuté of limitations stricken out. He says in his affidavit, that he did this before he was ' served with the order of September 24 ; but he does not say, that he was not aware that that order had been made, or that he did not do it in anticipation of the service of that order. Mr. Parmenter states in his af

p. 390

fi davit, that the answers were served after the motion for the modification of the order of September 14 was decided.

At all events, the attorney for the defendant, when he served the answers on September 24, had not forgotten that the motion for the modifications had been made to the county judge, and that, if - it had not been decided, it was still pending before him. I think on the papers before us, the defendant’s attorney, in serving the answers on September 24, with the defense of the statute of limitations stricken out, should be regarded as having availed himself of the order of September 14, as modified by the order of September 24, and that he could not afterwards, as matter of course and of right, serve the amended answers with the defense of the statute of limitations in them, because the .question of his right to serve answers with that defense in them, must be deemed to have been passed upon by the county judge, and to have been, and to be, res adjudicaba, whilst the order of September 24 stood in force, unreversed and unvacated; and that the order appealed from should be affirmed, with costs.

On farther consideration, a re-argument was ordered.

Samuel Hand, for the appellant.—I.

The county judge had no power to modify the order on a notice or order to show cause (Rogers v. McElhone, 12 Abb. Pr., 292 ; 20 How. Pr., 441 ; Merritt v. Slocum, 3 Id., 309 ; Cayuga Bank v. Warfield, 13 Id., 439).

II. A judge extending time, cannot restrict the pleading (see Code of Procedure, § 405).

III. Defendant’s right to amend, is only limited by liability to have the amended pleading struck out on motion, if put in for delay and- to cause loss of a circuit (Code of Procedure, § 172 ; 18 How. Pr., 272 ; 11

p. 391

Id., 273 ; 1 Abb. Pr., 85 ). And this right was not waived by serving the first answer.

IY. Plaintiff noticed the canse before moving to strike out the answer, which was a waiver ( 17 How. Pr., 561 ; 14 Abb. Pr., 120 ; Id., 444; Burr. Pr., 473, 434).

It was said by the judge who granted the order striking out the answer, that we should have appealed from the county judge’s order. But if he had power to make it, the appeal would have been dismissed, for the order would have been discretionary; and if otherwise, our time to answer would have expired before the appeal could possibly be heard.

R. A. Parmenter, for the respondents.

I. The validity and regularity of the county judge’s order cannot be assailed on this appeal. 1. Defendant should have appealed from it. 2. The power to make an order includes power to modify it. 3. That power is expressly given by section 324. 4. Conceding that the modification should have been ex-parte, defendant’s remedy was to appeal or move to set it aside. 5. Rogers v. McEIhone,relied on, turned on the objection that an order of arrest could be vacated only on motion .to the court, and that one day was insufficient notice. 6. The affidavits show that defendant’s attorney was not misled by reliance on the original order. 7. He complied with the modified order, and is therefore estopped from ask-. ing its review (Vail v. Remsen, 7 Paige, 206; Brady v. Donnelly, 1 N. Y., 126 ; D’Ivernois v. Leavitt, 8 Abb. Pr., 60 ).

H. Defendant, having applied for a favor, and accepted it with the modification, is bound by the modification.

III. He should not be relieved in order to plead the statute (King v. Merchants’ Exchange Co., 2 Sandf.,

p. 392

693 ; Hawes v. Hoyt, 11 How. Pr., 454 ; Lovett v. Cowman, 6 Hill, 223 ; Morris v. Slatery, 6 Abb. Pr., 74 ).

It appears from the affidavits, that the original answer was served after the decision of the motion to modify, though before the service of the order thereon. The decision of the motion terminated the stay contained in the order to show cause, and it was therefore regular to serve an answer at that time.

The service was also within the time given by the original order extending the time to answer. If that order had not been modified, the defendant would have had the right, within twenty days after service of the original answer, to amend it of course, as he did, by adding the defense of the statute of limitations.

If the order modifying the order extending time was absolutely void, for want of jurisdiction in the county judge to make it, the original order extending time remained in force, and the defendant had the same rights which he would have had, if no attempt had been made to modify it.

It is claimed that this modification is void on two grounds. 1. That a judge has no right to prohibit a party from interposing any particular defense. 2. That the order of modification was not made ex-po/rle, but was made on a special motion or notice.

The power of a county judge to make orders in actions pending in the supreme court extends only to such orders as are made out of court and without notice. He has no jurisdiction to hear and decide a contested motion (Code, § 401, subd. 3; §§ 403, 405 ; Merritt v. Slocum, 3 How. Pr., 309 ; Rogers v. McElhone, 12 Abb. Pr., 292 ; S. C., 20 How. Pr., 441 ).

The order in question was made after a hearing of both parties on the return of an order to show cause.

p. 393

An order to show cause is equivalent to a notice of motion. It merely shortens the notice prescribed by law (Code, § 402).

The order containing the modification recites the order to show cause, the hearing of the arguments of counsel for both parties, and adjudges that the cause shown against the granting of the motion is not sufficient, and thereupon grants the relief moved for. This presents every feature of a contested moiion heard on notice. It was not, therefore, such an order as a county judge had power to make.

It is urged that the county judge could have modified his first order ex-parte, and therefore his hearing of the parties on notice of motion or order to show cause, did not invalidate that which he could have done without such notice or hearing.

That conclusion does not necessarily follow. The power of the county judge is limited to a class of orders which may, according to established practice, be made without notice to the adverse party, and to which the applicant exhibits a right so plain that the judge is willing to grant the order without such notice. But when the case is not so clear, the judge, even though having the power to act on the ex-parte application of one party, may decline to do so, and require notice of motion to be given, or grant an order to show cause. The application then becomes a special motion, and the order made thereon can only be reviewed like other orders made on notice.

In this case, even if it be conceded that the county judge would have had the power to make the modification ex-parte, it must also be conceded that he did not exercise such power, but very justly decided that it was a proper case for a motion on notice, and granted an order to show cause, with a stay of proceedings till the hearing and decision of the motion. Such a motion could only be heard and decided by a judge of the

p. 394

court in which the action was pending. The county-judge not having jurisdiction to hear and decide the motion, his order thereon was void, and the original order extending.the time stood unmodified.

This conclusion renders it unnecessary to pass upon the question raised, as to the power of the court, or a judge thereof, to attach to an order extending time, a prohibition of any legal defense. The wrong, in this particular case, does not consist so much in attaching the condition, as the manner in which it was done. If the county judge, when applied to for the extension, had insisted on annexing the condition, the defendant’s attorney might have declined to accept such an order, and himself verified and served the answer, the time not having then expired. • But by granting the first order, he induced the defendant’s attorney to allow the time to answer, which still remained to him, to elapse, and by the subsequent modification deprived the defendant of any opportunity to interpose his de-' fense. This was an exceedingly strict proceeding, and the powers of the county judge should not be enlarged, by construction, for the purpose of giving effect to it.

The orders appealed from should be reversed.

Chtjech, Ch. J., and Allen and Folgek, JJ., concurred.

Peckham, J., did not sit.

Gboveb, J., was for affirmance.

Order reversed, and motion denied with costs.