People ex rel. Salke v. Talcott — 59 How. Pr. 269

Majority

p. 269

SUPREME COURT.

The People ex rel. Lewis Salke agt. James Talcott and the Marine Court.

Headnote

Stipulation on appeal— Writ of prohibition—Practice on appeals from order of general term, maoine cowrt, granting a new trial to court of common pleas.

There can be no appeal from an order of the marine court granting a new trial without the stipulation required by the act of 1874. Nor have the provisions of chapter 479 of the Laws of 1875 abrogated or repealed the provisions of the act of 1874.

The absence of the stipulation and the appeal from the order assuming the appeal was regular under the act of 1875, took the case out of the provisions of the act of 1874 and left the court of common pleas to the exercise of the discretion vested in that court in such cases by subdivision 2 of section 48 of chapter 479 of the Laws of 1875, and the exercise of that discretion is not reviewable at a special term of this court on the extraordinary writ of prohibition.

The relator if aggrieved by the judgment of the court of common pleas because of any irregularity of form, has a plain remedy by application to that tribunal for the correction of the judgment, this court should not interfere by prohibition while so simple and easy a remedy lies open to the relator.

As there was no lawful appeal which could give the court of common pleas jurisdiction under the statute, the case has remained in legal contemplation in the marine court, subject to the order of the general term granting a new trial, and this court will not interfere with the functions of that tribunal in this case by a writ of prohibition.

First Department, General Term, August, 1880.

The appeal was from an order at special’ term granting a writ of prohibition forbidding the marine court from taking further proceedings in an action between the relator and the respondent, Talcott, to recover the value of goods sold and delivered, and which Salke obtained by false and fraudulent representations.

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The plaintiff secured a judgment for $473.79, which the general term of the marine court reversed on appeal, and ordered a new trial. Talcott appealed to the court of common pleas, but did not accompany his notice of appeal with any stipulation that judgment absolute might be rendered against him in the event of an affirmance. The court of common pleas affirmed the order appealed from and remitted the case to the marine court for a new trial. The relator claimed that such disposition of the case was improper, that judgment absolute should have been rendered by the court of common pleas in his favor, notwithstanding that the record contained no stipulation to that effect.

Thomas <& Wilder, for appellants.

Richard S. Newcomb, for respondents.

For several reasons the writ of prohibition in this case was improperly granted:

1. The appeal from the order of the general term of the marine court granting a new trial was not accompanied by the stipulation required by chapter 545 of the Laws of 1874. In Gordon agt. Erdmam, the court of appeals have held that “ there can be no appeal from an order of the marine court granting a new trial without the stipulation required by the act of 1874.” - The court also held that the provisions of chapter 479 of the Laws of 1875 had not abrogated or repealed the provisions of the act of 1874. That decision is, of course, controlling, and it follows that the court of common pleas, whatever else it might have done, had no power to render-judgment absolute against the appellant from the order granting the new trial. The order of the common pleas in affirming the marine court did not render judgment absolute against the appellant; and it appears from the opinion of the general term that it did not intend to do so. To hold in this case that in a case where it not only had no power to render such a judg

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ment, and did not render it but declared emphatically its intention to the contrary, the law will regard what it did do as equivalent to such a judgment, would "be a novel exercise of the authority of the court under the writ of prohibition. The legal effect of the judgment of the court of common pleas was to remand the case to the marine court for such action as is directed by the order of the general term.

2. The absence of the stipulation and the appeal from the order, assuming the appeal was regular under the act of 1875, took the case out of the provisions of the act of 1874 and left the court of common pleas to the exercise of .the discretion vested in that court in such cases by subdivision 2 of section 43 of chapter 479 of the Laws of 1875. This was the view taken by the judges of the common pleas (for reasons specially assigned), and the exercise of that discretion is not reviewable at a special term of this court on the extraordinary writ of prohibition.

3. The relator, if aggrieved by the judgment of the court of common pleas because of any irregularity of form, has a plain remedy by application to that tribunal for the correction of the judgment. This court should not interfere by prohibition while so simple and easy a remedy lies open to the relator.

4. If there was no lawful appeal which could give the court of common pleas jurisdiction — as seems to be the view of the court of appeals — under the statute, the case has remained in legal contemplation in the marine court subject to the order of the general term granting the new trial. That court is, perhaps, to do nothing more than to proceed, in the discharge of its judicial duty, to a new trial in conformity with the judgment of the general term. There is, therefore, no more reason for interfering with the functions of that tribunal in this case by a writ of prohibition than there is to arrest all its functions by similar process. If the court is assuming to act without authority the relator can protect himself by raising the proper objections and by exceptions at the time the case

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is moved for trial, and by correcting the erroneous ruling, if any, by appeal. His rights depend upon questions of law, which may be presented and all errors affecting the same corrected, in the ordinary proceeding in the action, without resorting to a writ designed for purposes foreign to the review and correction of those errors which occur in the progress of the trial and decision of causes.

The ordef should be reversed and the writ quashed.

Brady and Barrett, JJ., concurred.