Blunt v. Greenwood — 1 Cow. 15

Majority

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Blunt against Greenwood.

Headnote

Mandamus lies to correct erroneous practice of a Court of Common Pleas, except in mere matters of discretion. An execution may issue immediately, on judgment being perfected,subject to be defeated by a writ of error, filed in 4 days thereafter.These are 4 clear juridical days, excluding Sunday. A writ of error, returnable here, must issue out of this Court.— If issued from the Court of Chancery, it is a nullity. A writ of error will not supersede an execu^ tion executed. But in such case,the Court may order the money to be brought into Court, to abide the event of the writ. The counsel showing cause against a rule, have the right of reply.— Form given of a mandamus to Common Pleas to vacate a rule.

Blunt, moved for a mandamus to the Judges of the Court ©f Common Pleas of the City and County of New-York, commanding them to vacate a rule, granted at the \ast February term of that Court, setting aside a fieri facias, upon a judgment of the January term preceding, in favour of Blunt Against Greenwood. It appeared, by the affidavits, that the judgment, upon which the fieri facias issued, was perfected the 11 th of January last, which was Saturday. On the 16th of the same month, a bill of exceptions, taken by Greenwood, upon the trial of the cause, was sealed, and on the day following, was filed in the office of the Clerk of that Court, together with a writ of error. Bail in error was put in, and the recognizance was filed with the writ of error, and on the same day notice of these proceedings was served on the plaintiff’s attorney. The writ of error purported to have been issued out of the Court of Chancery, and was tested in the name of the Chancellor, sealed with the seal of that Court, and made returnable in the Supreme Court of Judicature of the State of New-York, on the first day of May term, 1823. On the 18th of January, the day before the writ of error, &c. were filed, and notice given, a fieri facias was issued, which, on the next day, was executed by a levy upon the property of Greenwood. The Court of Common Pleas set aside this fieri facias, as irregular.

Blunt, agreed that that the party has four days, after sign' ing judgment, within which to sue out and file his writ of error, or to put in bail upon a writ of error previously filed.

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That this was so, he referred to Doe v. Bracebridge, (IT. Hi 280, note a;) Brisban and Brannan v. Caines, (11 John. Rep¿ 197;) and Lane et ah v. Bacchus, (2 T. R. 44.) But he denied Party was bound to wait one moment, after perfecting his judgment, to take out execution. This might be doné instanter. True, it was at the plaintifl’s peril. If error was brought, and bail put in within the four days, this superseded the execution; but did not affect its original regularity. And he said that the cases he had referred to, in 11 John, and 2 T. R. went upon this distinction ; and Tidd,sBrae. 1073, laid down the same rule.

“ But it will be said, that the bill of exceptions stayed the proceedings. This is true of bills taken in the Supreme Court, since the Stat. sess. 36, c. 3, s. 4. (1 R. L. 319.) The decision in Hasbrouch v. Tappen, (1 6 John. Hep. 182,) that a bill of exceptions stays the proceedings, is grounded Upon this statute, which has no application to the Common Pleas. Under this statute, the Supreme Court still retain á jurisdiction over the bill quoad hoc ; but the inquiry here, is how the matter stood at the common law. There the cause proceeds, and judgment is given, as if there were no bill of exceptions. This was decided in Gardner v. Bailie, (1 B. & P. 32,) and the same rule is in 1 Sell. Prac. 470. These authorities show, that a bill of exceptions in the Common Pleas does not, per se, stay the proceedings.

“ But this writ is a nullity. By statute (Sess. 38, c. 38, s. 1,) all original writs, formerly issuing out of Chancery, returnable in this Court, for the commencement of any suit or proceeding, shall hereafter issue out of and under the seal of this Court. The words are imperative; and writs of error can no longer issue out of Chancery. This Court, in regard to writs returnable here, are made the oficina brevium, instead of Chancery.” (Lynch v. MechanicIJs Bank, 13 John. 127 . )^[1]

Greenwood, contra.

The defendant has four clear days, after final judgment, within which to file his writ of error. (Bennet v. Nichols, 4 T. R. 121.) And these are four clear

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juridical days. (Hales v. Owen, Salk. 625.) The judgment being perfected on the 11th, which was Saturday, we were then in season with our writ of error and bail, On Friday the 11th. Saturday is excluded as being the first day, and Sunday as being dies non juridicus. And after the allowance of thé writ of error, he had in this case, four additional days, within which to put in bail. The distinction is, that where the writ of error is allowed, and the allowance served after judgment signed, the party then has four days to put in bail, after serving the allowance. (2 Sell. Pr. 373.) But if such service of thé allowance be before judgment, he then has four days after signing judgment. (Ibid, 1 Rich. C. P. pr. 252. 2 Tidd. 1084. 1 Archbold, 224. Gravall v. Stimpson, 1 B. & P. 478.) And so long as the execution is executable but not executed, thé writ of error is a supersedeas.— (Perkins v. Woolaston, 1 Salk. 321. Meriton v. Stevens, Willes, 271.) These rules apply to ordinary cases, where the record is complete, and all the matters appear upon the face of it. But this is a much stronger case. Where there is a bill of exceptions, the writ cannot be brought, until the record is perfected, by the signing and filing the bill of exceptions. (1 Archbold, 186.) It was the duty of the Judge on 'tendering the bill, to have set his seal to it, and we ought not to be prejudiced by any delay, which arose from taking time, by the Judge or the parties, to settle it, according to the facts. Until the bill is settled, the defendant cannot know whether to bring his writ of efror or not. The course is, to take out the writ, and after the bill is settled, it is attached-to the writ and takes effect. (1 Archbold’s Pract. 186. Tidd, 791.) The Court below, then, having jurisdiction of the subject matter, had a right to make such rule in relation to this fi. fa. as it should think just and equitable, under the special circumstances of the case. It was a mere matter of practice ; and no case can be found, where this Court have interfered by mandamus, in a proceeding of this kind. The granting or refusing the rule to set aside the fi.fa. was matter of discretion, and having been passed upon, it is res judicata, and can no more be opened or disturbed, than the

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matters adverted td by the Chancellor, in Gelston v. Codwise. (1 John. Ch. Cas. 189.)

It is doubtful whether writs of error are within the words writs, used by the statute. (Sess. 38, c. 38, s. 1.) If they are not, then the writ of error is regular, and is a dear supersedeas to the fi. fa.

T. A. Emmet, in reply,

agreed that where the Court below has a discretion, a mandamus will not lie, to control them in the exercise of it. But here is no discretion. The execution was regular, and it follows, that the Court had no power to prevent its issuing. Can the Judges supersede an execution at discretion, without any reason whatever ?■- ' The statute was intended to take away all jurisdiction over writs, formerly issued by the Court of Chancery, returnable in Courts of law ; and to transfer the whole of this power to the Court where the writ is returnable. The bill of exceptions is no stay of proceedings, and in Hasbrouk v. Tappen, ( 15 John. 182 ,) the Court put it upon the words of the act, and recognize the ancient practice as being different.

In this ease the four clear juridical days, Which are allowed for bringing d writ of error, had not elapsed when execution issued. But here is no irregularity. Though the defendant has four days to bring error, the plaintiff may, in the mean time, issue execution, at his peril, Which is subject to be superseded, by filing a Writ of error, and putting in bail. (Brisban & Brannon v. Caines, 11 John. Rep. 197 .) But it is objected, that here is no writ of error ; and this draws in question the construction of the statute. (Sess. 38, ch. 38, s. 1.) As far as we can learn, the practice under this act has been, to issue out of this Court all writá formerly issuing out of Chancery, returnable here, as well, original writs, properly so called, as writs of error. We are of Opinion, that this is the correct practice. The words ef the statute are, original writs for the commencement of any suit or proceeding. It is imperative ; they shall hereof ter issue out of and under the seal of the Court, in which such writs may be returnable. This was, undoubtedly, the commencement of a proceeding, within the words of the act.

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In this view of the case, the paper purporting to be a writ of error, and filed as such, was a nullity. But as it did not appear that notice of the motion had been served on the Judges, the Court granted

A rule to show cause, &c.

On the nth of May, the time appointed in the rule .to show cause, Blunt moved to make the rule for a mandamus absolute.

Greenwood, produced the answer of the Judges, which did not vary materially from the facts, as they appeared on moving for the first rule. It appeared, however, that shortly after the writ of error, which issued out of Chancery, had been filed, the attorney for the defendant, supposing it might be defective, had procured a writ of error to be issued out of this Court, and filed with the Clerk, in the Court below, upon which, bail was put in. It farther appeared, that after the trial, the bill of exceptions had been drawn up by the attorney for the defendant, and amendments proposed by the attorney for the plaintiff; in consequence of which it was not settled and signed by the Judge who tried the cause, until the lQth of January, more than a week after the trial.

Greenwood, now referred to Wathen et al. v. Beaumont et al. (11 East, 271,) where it was holden, that Sundays and Holy days were excluded from the computation of time given to plead upon a sci.fa. though these may not happen on the last day. He also referred to Roberts v. Stacy, (13 East, 21,) which decides that the first and last days, as well as Sundays, 9-re excluded, in counting time, upon a rule for judgment.^[1] The principle of these decisions, he said, would give the

(b) (b) In rules plead, in actions in general, a Sunday or Holyday reckons as a day, unless it be the last. (Roberts v. Quickenden, 11 East, 272, note c. Cock v. Bunn, 6 John. Rep. 327 .) One day is reckoned inclusive, and the other exclusive; so that where notice of the rule Jo plead is served the 1 st September, the defendant has all the 21 st day in which to plead, and the default cannot be entered till the 22nd. (Hoffman v. Duel, 5 John. Rep. 232 .) And where the time for pleading is extended by an order, until such a day, it includes that day; so that the default cannpt be entered till the next. (Thomas v. Douglass, 2 John. Cas. 226.)

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same time for bringing a writ of error. [Woodworth J, Admit this to be so ; was your writ of error a good one ?• We thought on granting the rule to show cause, that it was not.]

T. A. Emmet, referred to the case of Doe v. Finely, (4 Taunt. 289,) as onp which he should use in his reply. He mentioned this case now, that the counsel opposed to the motion, might have an pppprtunity to answer it.

Fessenden, for the defendant, said he supposed, that court-, se^ answering a rule to show cause, had the right of reply, which he should claim to exercise, if he thought it necessary ; to which the Court agreed. He insisted that the writ of error, out of Chancery, was not a mere nullity. It was voidable only, not void. If voidable, it would operate as a supersedeas till set aside ; and the Court below had no right to question its regularity. The statute does not declare, that an original writ, issued out of Chancery, shall be void. This Court have decided that a writ, though not tested in the name of the Chief Justice, is voidable, and may be amended. (U. Slates v. Hanford, 19 John. 173 .) Yet this test is absolutely required by the Constitution.

But the counsel and attornies in the Court below, did what was equivalent to an order to stay proceedings, in that Court. A bill of exceptions was drawn up, and amendments interchanged. The attorney for the plaintiff appearing, and ta'king part in settling the bill, was calculated to mislead,the attorney for the defendant, who was thereby prevented from obtaining an order. This Court have decided, that where the counsel for the parties submit to the Court a motion in arrest of judgment, it operates, per se, as a stay of proceedings. What the parties have done here is the same in effect. But if not, the Court below had a right to relieve against this strict practice, on the ground of misapprehension. (The Mayor, &c. of New York v. Sands, 2 Caine's Rep. 378.) The same thing is done at every term of this Court. Here ample bail is given, and no evil can arise in allowing, full operation to the second writ of error. In granting a mandamus, this Court'exprcisp a discretionary power ; and

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they will not interfere, in the exercise of that discretion, merely because the Court below may have erred in a minute particular. At any rate we now have a good writ of error, and though it may not stay execution, yet the Court will con- , , J . troi the money when collected, so as not to sufier it to pass into the plaintiff’s hands. (Miriton v. Stevens, Willes, 272.)

Blunt fy T. A. Emmet, contra, said that the writ of error was void. And there had been no surprise, to warrant the interference of the Court below. The writ issued out of a Court having no authority to grant it. Suppose it had issued from one of the United States’ Courts, would the Judges have been bound to obey it ? The judgment having been perfected, it passed beyond the control of the Court below. Nor does the answer of the Judges put their proceeding upon the ground of discretion. True, a writ may be amended in the test, because it issues out of a proper Court; but you cannot amend the fact, that it issued out of the Court of Chancery. It is as much void to all intents, as if it had been issued by the Common Pleas of Chenango. Nor is this case like submitting a motion in arrest of judgment; for that comes before the Court in due and proper course ; and the submission would, in its nature, stay the proceedings. As to the disposition of the money when collected, they submitted it to the Court.

The facts shewn for cause, appear to be precisely the same, to every material purpose, as on granting the rule to shew cause ; and we see no sufficient reason for changing the opinion which we then expressed. The Court below misapprehended the practice, in supposing that execution could not go, within the four days. The plaintiff had a qualified right to his fi. fa. The words of the statute, undoubtedly, embrace writs of error ; and this construction is ■conformable to the general practice and understanding of the bar. Here there was no writ of error, and no bail. All is void. But a second and valid writ of error has been filed, and bail put in. This was not till after the fieri facias was executed ; and therefore, does not operate as a superset

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deas.^[2] As here has been a misapprehension of the practice ; and as the defendant’s counsel insists, and the plaintiff’s counsel submits, that this Court should make such disPosition of the money, to be collected, as shall be equitable; let the money be paid into Court, to abide the event of the writ of error.^[3] The Clerk may pay it-to the plaintiff, on his giving security to refund; or it may be placed at interest, by the Clerk, on ,such security as he shall think proper.

Rule absolute, but without costs.^[4]

(d) (d) In Meriton v. Stevens, a similar rule was made m the Court heloy, without the consent of parties.

(e) (e) The form of the mandamus, thereupon issued, was thus: The People of the State of New-York :—To the Judges of the Court of Common Pleas of the city of New-York, Greeting : Wheve (L. S.~) as Edmund M. Blunt, lately recovered a judgment for the sum of nine hundred and ninety-seven dollars and eighty-two cents, against one Isaac Greenwood, which said judgment was entered of record, in the said Court of Common Pleas, on the eleventh day of January last, and upon which said judgment a fieri facias was issued ; and, afterwards, a levy made by virtue of the said fieri facias, upon the goods aqd chattels of the said Isaac, to wit, on the seventeenth day of said January ; and whereas, we have been informed, from the complaint of the said Edmund, that a rule was granted by you, during the last February term of the said Court of Common Pleas, setting aside the said fieri facias, to the great damage and grievance of the said Edmund: We, therefore, being willing that due and speedy justice should be done to the said Edmund, in this behalf, as it is reasonable, do command you, firmly enj oining you, that immediately after the receipt of this our writ, you do, without delay, vacate, and cause to be vacated, the said rule granted by you at the last February term of the said Court of Common Pleas, that the «ame complaint may not, by your default, be again repeated to us : and how you shall have executed this our writ, make known to us, before our Justices of opr Supreme Court of Judicature, at the Academy in the town of Utica, in the county of Oneida, on the first Monday of August next, then and there returning this our writ, upon peril, that may fall thereon. Witness, John Savage, Esquire, Chief Justice, at the City Hall of the city of New-York, the seventeenth day of May, in the year of our Lord one thousand eight hundred and twenty .three, Fairlie, Bloodgoof & Breese, Clerks~ J. Bhmt,A tt’y.