Majority
p. 260Jackson vs. Ives. moved to set aside the verdict for irregularity. He said the plaintiff could not try at the circuit so long as the order for a reference remained. The referees had lost all jurisdiction over the cause. (Jackson v. Ives, 22 Wend. 637 ; Ex parte Rutter, 3 Hill, 464 ;) and the plaintiff was therefore regular in treating, the reference as a nullity. ;
Headnote
Notwithstanding the referées appointed in a cause have lost all power over it by granting improper adjournments or otherwise, the plaintiff cannot proceed to trial at the circuit without first obtaining leave from the court.This cause having been referred on the plaintiff’s motion in March, 1840, was brought to a hearing before the referees on the 10th of April following, when a part of the testimony was taken. On the plaintiff’s application, the referees then adjourned to the third Friday in June. Only two of the referees appeared at the adjourned day, and they granted a further adjournment to the 14th of July. The two referees again adjourned to the 14th of August, and when that day arrived they adjourned sine die. The defendant insisted that the referees had lost all jurisdiction over the cause, and he attended the adjourned meetings for the mere purpose of seeing what was done. No further proceedings took place for three years, within which time one of the referees died. The plaintiff noticed the cause for trial at the last September circuit in New-York, and took a verdict, the defendant refusing to appear.
P. Cagger, for the defendant,
S. J. Cowen, for the plaintiff.
The adjournment on the plaintiff’s application to a day beyond the next May term of the court was irregular, and the referees had no longer any power over the cause. Nothing but the consent of the defendant, or the order of the court, could authorize them to proceed further with
p. 261
the hearing. But I think the plaintiff could not disregard the order for a reference, and proceed to trial at the circuit, without first obtaining the leave of the court. On the death, sickness, removal or other disqualification of one or more of the referees, the usual course is to apply for the appointment of other persons in then’ places; and if the court had been moved in this case, we might either have renewed the powers of the referees, or appointed others to take their places. It would not have been a matter of course to revoke the order for a reference, and direct a trial at the circuit. And should such an order be deemed expedient, it would then be proper to consider on what terms it should be made. The plaintiff has subjected the defendant to the trouble and expense of attending and producing evidence before the referees, and then by his own irregularity in procuring an adjournment beyond the next term has put an end to their powers. He would probably be required to pay the costs of the reference. Other things might also be taken into the account. The plaintiff has kept the cause hanging before the referees for more than three years, and in the meantime the defendant’s witnesses may have died, or removed from the state. But it is enough to say, that the plaintiff could not go on at the circuit without first obtaining a revocation of the order for a reference.
Motion granted.
Cases cited
- Jackson v. Ives 22 Wend. 637 p. 260