p. 27Headnote
After an application to set aside a report of referees on the merits is decided, a motion for leave to have a statement of facts settled and inserted in the judgment record, with a view to a writ of error, will be denied, if it appear that the time limited for bringing error has expired.The time limited for bringing error, in such case, dates from the “ final determination” of the court, i. e. the term when the motion to set aside the report was actually decided; and not from the entry of the rule for judgment upon the report, nor from the filing of the judgment record.
D. Burwell, for the defendant,
moved for leave to draw up a statement of facts from the special report made by the referees, and to have such statement settled and inserted in the judgment record, to the end that the defendant might bring a
p. 28writ of error. He read an affidavit, stating that judgment for the plaintiff was entered upon the report of the referees on the 21st of January, 1841.
A. Taber, for the plaintiff,
read an affidavit from which it appeared that the referees made their report in March, 1837, for $4594,16 ; that the defendant made a motion to set aside the report on the merits, which was argued at May term, 1840, and decided in July term following, by denying the motion. Immediately after the decision, the defendant requested the plaintiff’s attorney to delay the entry of judgment until the first of January following, by which time he said he would make payment; and, in consideration of the delay, the defendant agreed that he would relinquish and surrender the right to bring a writ of error. This proposition was acceded to by the plaintiff, who waited until the 21st of January, 1841, when (the defendant having failed to make payment as he had promised) judgment was perfected. Other delays had been granted to the defendant since the entry of judgment, and he had repeatedly assured the plaintiff that, in consequence of such lenity, he gave up all right to prosecute a writ of error.
. Taber said the defendant was now too late to bring error. The writ should have been sued out within two years after the final determination of the court on the motion to set aside the report of the referees. The time was to be reckoned from that determination, and not from the day the record was filed. (2 R. S. 594, § 21; Fleet v. Youngs, 11 Wend. 522 .) He also contended, that the defendant was chargeable with bad faith in attempting to bring error after he had procured delay in entering the judgment by agreeing that he would not bring error. (Ames v. Webber, 11 Wend. 186 ; Cates v. West, 2 T. R. 183 ; Cave v. Massey, 5 Dowl. & Ryl. 624; Camden v. Edie, 1 H. Black. 21; Wright v. Nutt, 1 T. R. 388.)
Burwell said it did not appear when the report of the ref
p. 29erees was filed and a rule for judgment thereupon entered; that the two years would not commence running until that was done. And besides, the plaintiff can only take advantage of the limitation by plea, after the writ of error shall be sued out. (Fleet v. Youngs, 11 Wend. 522 .)
By the Court,
Although it does not appear upon the papers that a rule for judgment was entered at the next term after the report was made, there can be no doubt that it was done. And besides, if the rule was never entered, it would be almost a matter of course to allow it to be done nunc pro tunc.
But I think the question of limitation does not turn on the time of entering the rule for judgment, but on the time when the final determination was made on the motion to set aside the report.. The rule for judgment was undoubtedly entered in May term, 1837 ; and if we date from that, the time for bringing a writ of error had expired before the motion for a rehearing was made, which was in May term, 1840.
The question then is, whether the limitation dates from the final determination of the court, which was made in July term, 1840, or from the subsequent filing of the judgment record in January, 1841. The statute provides, that “all writs of error upon any judgment or final determination rendered in any cause,” “ shall be brought within two years after the rendering of such judgment, or final determination, and not after.” (2 R. S. 594, § 21.) The judgment or final determination in this cause was rendered in July term, 1840, when the motion which had been made to set aside the report of the referees was denied. The record which was afterwards filed was not the judgment, but only a written memorial of the judgment which had been previously rendered. The court of errors arrived at the same conclusion upon this question in Fleet v. Youngs, ( 11 Wend. 522 .) It follows, that the time for bringing a writ of error has already expired, and we ought not to put the plain
p. 30tiffs to the expense and ourselves to the inconvenience of settling a case, when we see that it can do no good.
It would be clearly against good faith for the defendant to bring error after having obtained delays upon an agreement that he would not do it, and the motion might, perhaps, be denied upon that ground. But it is enough that he is too late.
Motion denied.