Wilder v. Wheeler — 1 How. Pr. 114

Majority

p. 114

George G. Wilder et al. vs. Benjamin Wheeler.

Headnote

Under the 39th rule, a recorder has no power to grant an order enlarging time to serve papers ^c., upon which to move to set aside a report of referees, and staying proceedings, within four days from the signing and filing the report. A circuit judge has no power to grant such an order after four days from the signing and filing the report.

Motion by defendant to set aside the judgment entered upon the report of the referees in this cause, or that the defendant have leave to move at the next term, to set aside the said report of referees made and filed therein.—This cause was referred by stipulation, to three referees, who after having heard the testimony &c. therein, made their report on the 30th day of January last, in favor of the plaintiffs. On the same day, 30th January last, the report was filed and rule for final judgment thereon entered, And on the 31st January last judgment record therein was filed. On the 1st day of February last, defendant’s attorney procured an order from A. B. Olin, Esq. recorder of the city of Troy, giving the defendant thirty days to prepare and serve affidavits and papers for a motion to set aside the report of the referees, and staying plaintiffs’ pro. ceedings in the mean time; a copy of which order was served on plaint

p. 115

iffs’ attorneys, on the 1st day of February last. On the 5th day of February last, defendant’s attorney obtained an order in this cause and one other, from A. J. Parker, Esq., circuit judge, giving defendant thirty days in which to make and serve affidavits and other papers for a motion to set aside the report of the referees in this cause, and staying plaintiffs’ proceedings in the mean time. A copy of said last order was served on the plaintiffs’ attorneys on the 5th February last. Defendant’s attorney prepared the affidavits and papers for the purpose of moving this court to set aside the report of the referees aforesaid; and on the 24th February last, served same on plaintiffs’ attorneys, together with a notice of motion for the next May term of this court. Defendant’s attorney gives as an excuse for not serving the affidavit and papers to set aside the report of the referees within four days from the signing and filing the same, that the testimony was voluminous, and there was not sufficient time; and he therefore procured the first order, of the recorder, extending the time; and, for greater precaution, subsequently obtained and served the order of the circuit judge as before stated.

S. Stevens, Befts Counsel. C. D. Sheldon, Befts Mty.

E. Pearson, Plffs Counsel. Pearson & Church, Plffs Attys.

Held that under the 39th rule, both orders were a nullity. The recorder had no power to make an order for that.purpose within four days; and after the four days had expired, the circuit judge had no power to grant a similar order; but allowed the service of defendant’s papers for the motion to set aside the report to be deemed good service, on payment of $7 costs of opposing this motion in twenty days» and that plaintiffs have twenty days thereafter to serve counter affidavits_ Judgment to stand as security.

Rule accordingly.