Chauncey v. Baldwin — 2 How. Pr. 202

Majority

p. 202

* William Chauncey agt. Daniel A. Baldwin and Charles Wadsworth.

Headnote

Service of copy case, affidavit, and notice of motion to set aside a report of referee, is not a stay of proceedings per se, until the case is settled. An order staying proceedings should be served. (See 2 Howard, 82 .)

Where judgment was entered by plaintiff after defendants had served copy case, affidavit, and notice of motion to set aside report of referee, without an order staying proceedings ; held, that the judgment was regular, and on motion by defendants to set aside such judgment, it was allowed on terms, and the oYder of the circuit judge of the first circuit granted at his special term, setting aside the judgment with costs to abide event, vacated.

Semble. That it is necessary for the appellant to serve on the appeUeeohly a notice of bringing an appeal from an order of a circuit judge. Although such preliminary objection was not decided in this and the following case of Bigelow agt. Heaton, yet from the fact that the appeal in each case was heard, and decided on the merits, without any other papers having been served in either than a notice, and after the question of such service had been raised on the argument, it would seem that such service was deemed sufficient.

September Term, 1846.

An appeal by plaintiff from an order of thp circuit judge of the first circuit, granted at special term.

At a special term held on the 27th of June, 1846, by and before Judge Edmonds, circuit judge of the first circuit (See Sessions Laws, 1841), an order was granted, on motion of defendants, setting aside the judgment- entered in this cause, costs to abide the event, on the following facts: this cause was, on the 7th of April last in April circuit, referred to Edward Sanford, Esq., as sole referee; the referee on the 3d

p. 206

day of June last reported in favor of the plaintiff; on *the same day plaintiff’s attorney entered a rule for judgment final on the report. Defendants’ attorney prepared a case within the time allowed by the rules of this court, upon which to move to set aside the report of the referee, which was verified by the usual affidavit. On the 13th of June, a copy of the case and affidavit, together with notice of motion for the last July term, was served on plaintiff’s attorney. On the 16tli of June, plaintiff’s attorney entered judgment on the report, without any notice given to defendants’ attorney, and defendants’ papers being retained by him. Defendants swore to merits on the motion, and that it was made in good faith, and not for the purpose of delay. Defendants’ papers did not show that there was any order staying proceedings served with the copy case, affidavit, and notice of motion to set aside the report.

Plaintiff’s attorney served on defendants’ attorney for this appeal a notice, of which the following is a copy: (title of the cause), “ Please take notice that I hereby appeal from the decision of the circuit judge, on the motion to set aside the. judgment for irregularity, made on the 27th June last in this cause, and that the bond required to be given on such appeal, duly approved according to law, has been filed in the office of the clerk of this court,, at the City Hall in the city of Hew-York, dated 3d of July, 1846,” and which was the only paper served on defendants’ attorney for bringing the appeal before this court.

Defendants’ counsel insisted, on the argument, that the affidavit on wlpch the motion was made should also have been served.

H. Harris, plaintiff's counsel.

W. H. Taggard, plaintiff's attorney.

Gr. B.. J. BOWDOIN, defendants' counsel.

Gr. W. Parsons, defendants' attorney.

These papers do not raise the question made by the counsel as to what papers should be served on an appeal from the special term orders of the circuit judge of the first circuit. As there was no order to stay proceedings, the plaintiff was entirely regular-in entering judgment, and the judgment should only have been set aside on terms. Ordered, that the said order of the circuit judge be vacated, and in case the defendants shall, within ten days, procure and serve an order staying proceedings until the case which they Lave made, for the purpose of setting aside the report of the referee, shall be argued and decided, then, on payment by the defendants of the costs of entering the judgment, and $7 costs of opposing this motion, it is further or dered, that the judgment be vacated and set aside. The plaintiff is not at liberty to proceed upon the judgment, until the ten days herein mentioned shall have expired.