Mallory v. East River Insurance — 7 Hill & Den. 192

Majority

p. 192

Mallory vs. The East River Insurance Company.

Headnote

An order to stay proceedings for the purpose of making a special motion, though served.before the motion papers, will take effect from the time they are served.

The order will in general stay the proceedings until the rule deciding the motion is actually entered by the cleric.

■ On the 30th of January last the plaintiff took an inquest in this cause at the New-York circuit. After failing in a negotiation to have the proceeding waived, the defendants’ attorney, on the 8th of February, obtained an order of the circuit judge staying the plaintiff’s proceedings until the judge’s motion term in March, and until the decision of the court upon a motion then to be made to set aside the inquest. The plaintiff had in the meantime entered judgment. The order was served on the 10th of February; but was not accompanied or preceded by any notice or other papers for a motion. Affidavits and a notice of motion to set aside the inquest to be made before the circuit judge were served on the 21st of February. The motion was made and opposed; and on the 3d of March the judge made a brief note of his decision on the papers, and handed them to the clerk. -In consequence of the papers having been mislaid, the rule was not drawn up, settled by the judge, and entered by the clerk, until the 10th of March. The order was, that the inquest and all subsequent proceedings be set aside: and it was further ordered that the defendants pay the costs of the inquest and subsequent proceedings, and take short notice of trial. On the 8th of March, after the judge had noted his decision on the papers, but before the rule was settled and entered by the clerk, the plaintiff issued execution, which was levied upon the property of the defendants.

6?. R. J. Bowdoin, for the defendants,

moved to set aside the execution for irregularity.

S. B. Noble, for the plaintiff.

The order to stay proceedings was of no effect, because it was not accompanied or preceded by

p. 193

papers and notice for a motion. (Rule 58; 1 Caines, 505; 5 Cowen, 438; 3 John. R. 451; Grah. Pr. 680.) But if the order to stay became operative when the papers for the motion were subsequently served, it only stayed the proceedings until the motion was decided by the judge on the 3d of March, and the issuing of the execution on the 8th was therefore regular.

By the Court,

Although the order to stay proceedings had no effect at the first, it became operative when the motion papers were subsequently served; and then, the motion having been made in due time, the plaintiff’s proceedings were stayed “ until the decision of the court” on the motion; or, as it is also expressed, “ until the order of the court.” (Rule 58.)^[1] The “ decision” or “ order of the court” was not made, within the meaning of the rule, until the order was finally settled by the judge and entered in the clerk’s minutes on the 10th of March. Down to that time the order to stay proceedings continued to operate, and the execution, which was issued two days before, was consequently irregular. It is not necessary to say what would be the effect of unnecessary delay in drawing up and entering the order of the court on a motion; for here there was no negligence on the part of the counsel for the moving party.

Should we yield to the argument that the motion was decided on the third of March, it would put the plaintiff equally in the wrong; for the inquest “ and all subsequent proceedings” were set aside. The judgment was gone, and there was no authority for the execution which was afterwards issued. The payment of costs was not made a condition of granting relief, as is usual in such cases. The proceedings were set aside absolutely, and the plaintiff could only get his costs by taxing and demanding them under the order.

In either view of the question the execution was irregular, and must be set aside.

Motion granted.

(a) (a) This Corresponds with the 59th rule of May term, 1845.