Smith v. Grant — 15 N.Y. 590

Majority

p. 590

Smith against Grant.

Headnote

An appeal to the Supreme Court, at general term, from a decision of a judge upon a trial had before him, without a jury, must be upon a case containing distinct statements of the facts, as found by the judge, of the conclusions of law propounded by him, and of the several exceptions to his Sndings of fact and conclusions of law respectively, together with so much of the evidence as is necessary to a proper understanding of the question intended to be raised upon the appeal. It is not sufficient to refer to the decision of the judge, as contained in the judgment roll, for the conclusions of fact and of law, nor to any paper separate from, and not constituting a part of the case for the exceptions thereto.

When an order, which the Court of Appeals has no jurisdiction to review, and the papers on which such order was granted by the court below, are incorporated in the appeal book, they will be stricken out upon motion.

Motion to dismiss appeal. The cause was tried before Mr. .Justice Hand without a jury, and he decided in favor of the plaintiff. The written decision signed by him, contains a statement of facts found, and of conclusions of law. After judgment, the defendant made a case for the purpose of appealing to the general term, which sets forth the history of the trial, but, instead of containing a statement of facts and conclusions of .law, as found by the judge, it refers to his written decision as contained in the judgment roll. Instead, also, of containing the exceptions taken to the decision, it refers to a separate paper “annexed,” which is a copy of exceptions which were served on the opposite

p. 591

party, after the decision was made. The judgment was affirmed at the general term. While the appeal was pending in the Supreme Court, a motion was made to refer the cause back to Mr. Justice Hand, for him to report more specifically the facts found by him, and his conclusions of law; which motion was denied. The plaintiff now moves to dismiss the appeal to this court, on the ground that the ease made in the Supreme Court, which has been returned on the appeal does not contain a statement of facts, the conclusions of law, and the exceptions thereto. If that motion fails, then he asks to have stricken from the appeal book, the order of the Supreme Court denying the motion to refer the case back to Justice Hand, and the papers on which that motion was founded; those papers, with the order having been printed on this appeal.

U. G. Paris, for the motion.

Hughes & Northrup, contra.

The case was informally made and settled. Besides the evidence, so far as necessary to a proper understanding of the questions intended to be raised on the appeal, if any portion of it was necessary, it should have contained a statement of the facts as the judge found them, and his conclusions of law. The place for this statement and those conclusions is not in the decision which the judge pronounces and signs as the authority for the judgment; but in the case made to review the judgment. The rules on this subject were laid down in Hunt v. Bloomer (3 Kern., 341) and Johnson v. Whitlock (Id., 344); also, Magie v. Baker (4 Kern., ). The exceptions should also have been inserted in the body of the case, as the practice always was, both in reference to cases and bills of exceptions, before the Code of Procedure. It has been too generally supposed that there is now something new, difficult and strange in the

p. 592

manner of preparing cases for appeal; and accordingly we find them prepared frequently in modes never heard of in any known system of practice. A case is now, in its substance, very nearly if not identically, what a bill of exceptions always was in legal practice, except as to the formal statement of facts, which is now required to be insorted. If attorneys, besides reading the Code, would caufullj study, in other books, the nature of a bill of exceptions, they would rarely be at a loss in preparing their cases for review The proceeding is extremely simple, instead of extreme y difficult, as seems to have been imagined.

In the present instance the case has a distint reference to a paper in the judgment roll for a statement of foots and conclusions of law, and to another schedule or paper for tin exceptions to those conclusions. All this is extremely inai tificial, but the outside papers and documents thus referred to, may, perhaps, be considered as incorporated in the body of the case. On this ground, we allow the appeal to stand, especially, as the practice has been misunderstood in very many instances.

The order, however, made by-the Supreme Court, denying the motion to refer the case back for a further statement of facts, &c., and the papers used on that motion must be struck from the appeal book. We have no jurisdiction to review such an order. To this extent, therefore, the motion is granted, without costs to either party.

Ordered accordingly.