Hawkins v. Dutchess & Orange Steamboat Co.

Headnote

_ An order for c™e,miderthe 6t*1 general rule of January term, 1T99, "¿gedíafterthé order has ex-wMe’it is run^

,fc expire, relief ha^n^ for the purpose jUdge may ceedings.

This cause was tried, and a verdict found for the plaintiff on the 28th of June last, before Duer, C. Judge, who, on that day, made this order: “ Let the defendants have 20 J1 . days from tins date, to make a case, m this cause; and, on making a case, let all proceedings upon the verdict be stayed, until the further order of the supreme court.” This order was served on the same day, upon the plaintiff’s attorney; but owing to the delay of papers, no case was made till after the 20 days. On the 30th day of July, 1827, the judge made this order, indorsed on the first: “ Let the time for making a case, by the within defendant, in the within entitled cause, be extended for 20 days from this day. Dated, &c.” This was served on the attorney for the plaintiff on the 1st of August; and on the 11th he was served -with a case; to which he declined making amendments ; but proceeded with the cause to judgment. The

defendants, on the other hand, considering the case *as duly settled, noticed it for argument at, and placed it upon the calendar of, the present term.

On this state of facts two motions were now made.

moved to set aside the judgment for irregularity; and

moved to strike the cause from the calendar. He said, the second order of the judge was a nullity. The only power he possessed, within the 6th general rule of January term, 1799, was, to enlarge the first order. That, having expired, could not be enlarged. This is a term which implies the existence of the first order; and the second must, therefore, be looked upon as an original one. The only relief which the defendants could have, was an order to stay the proceedings, till relief could be obtained on motion to .this court;