p. 415Headnote
A judge or officer before whom a party is notified to appear, is not, in strictness, bound to wait for him beyond the arrival of the precise time appointed ; though, in the exercise of his discretion, he may wait longer.Accordingly, in proceedings before a commissioner by a debtor, to obtain a discharge under the insolvent act, where the creditors were notified to appear at 10 o’clock A. M. on a given day, and one of them, intending to oppose the discharge, did not arrive at the commissioner’s office till some minutes after 10 o’clock, when the commissioner refused to bear him, on the ground that it was too latej held, not an error which could be reviewed on certiorari.
The particular circumstances which may influence the mind of a judge or commissioner in matters resting in mere discretion, make no part of his memorial or record of the proceedings, and cannot properly be returned on certiorari.
Otherwise in certain cases, semble, as to proceedings in justices’ courts.
Motion for a certiorari. The relator was a creditor of one Hance, who had applied for the benefit of the insolvent act, (2 R. S. 810, 2d ed., Non-imprisonment Act;) and the 18th November, 1841, at 10 A. M. was the time when the application was to be heard at the commissioner’s office. The relator intended to oppose the discharge, but did not arrive at the commissioner’s office till from five to fifteen minutes after the -hour of ten. In the mean time the commissioner had verbally ordered an assignment, and begun to sign his name to the written order. He had signed the initial of his first name. At this stage, the relator applied for leave to oppose the discharge; but the commissioner refused to hear him, on the ground that it was too late; and he proceeded to execute the order for an assignment. A motion was now made for a certiorari.
P. Gansevoort, for the motion.
By the Court,
It is not necessary to enquire whether the commissioner, by having made the verbal order and begun to sign the written one, had lost all control over the case; because he had a right, in strictness, to decline
p. 416hearing the opposing party after the hour appointed. His assigning for reason that it was too late, and that he then had no power to open the case, cannot be received for error, so long as the proceeding may be sustained by another reason which is valid. After announcing to the debtor that a written order would be made, his witness may have left the commissioner’s office, or other means prepared to sustain the application may have been dispensed with.
It would no doubt be erroneous, in this and the like cases, for a commissioner to decide before the hour appointed; but after that has arrived, we cannot interfere by certiorari, merely because he may allow a longer or shorter time. It is enough if he return that, at the hour, the party interested to oppose not appearing, he proceeded accordingly. In practice, it is sometimes usual to wait an hour; (said in Shufelt v. Simmons, 20 John. R. 309;) sometimes only half an hour. (Bagley’s Chamber Pr. 22.) But, in strictness, the party must attend at the precise time, {Id. 23,) and all beyond is matter of practice or discretion, like a judge postponing a trial. The particular ■ circumstances which regulate the mind of the judge in granting or refusing the extension of time applied for, make no part of the record, and cannot properly be brought into the return to a certiorari. The doctrine of certiorari from a justice’s court has no application. That court is by statute bound to return various collateral matters ; and this court has gone a great, not to say an inconvenient length, in looking after minute matters of practice 3 sometimes, perhaps, of mere discretion.
Motion denied.