Village of Palmyra v. Wynkoop — 24 N.Y. St. Rep. 824

Majority

p. 824

The Village of Palmyra, Resp’t, v. Alonzo Wynkoop et al., Administrators, etc., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed June 22, 1889.)

Headnote

Appeal—What hot reviewable—Code Crv. Pro , § 1021.

A case containing no decision of the court of the issues of law joined by a demurrer, as required by Code Civil Procedure, section 1021, is not properly before the appellate court for review, nor will the appeal upon such a record be considered.

Appeal from an interlocutory judgment overruling a demurrer to the complaint.

S. B. McIntyre, for app’lts; Aldrich & Sawyer, for resp’t.

Either the record on this appeal is not properly made up, or the practice has not been in accordance with the requirements of the Code of Civil Procedure. The appeal book contains no decision by the court of the issues of law joined by the demurrer.

The requirement of the Code is positive that, “ Upon a trial by the court of an issue of fact or of law, its decision, • in writing, must be filed, in the clerk’s office, within twenty days after the final adjournment of the term where the issue was tried.” Section 1010. And, further, “the decis

p. 825

ion of the court upon the trial of a demurrer must direct the final or interlocutory judgment to be entered thereupon.” Section 1021. There is no room for doubt as to the meaning and effect of these provisions of the statute. There can be no judgment on a demurrer, either final or interlocutory, without a decision in writing, of the issue or issues of law which have been tried. Such decision is as necessary on the trial of a demurrer as the trial of issue or issues of fact. In either case such decision, in writing, signed by the judge, is what is commonly denominated the “findings” of the court—in the one case embracing findings of fact and conclusions of law, in the other case embracing conclusions of law only. In neither case is an ■order of judgment necessary, nor can such order take the place of the decision in writing by the court; the decision itself directs the judgment to be entered thereupon. Section 1021, supra.

By the demurrer in this case, issue was joined upon three ■distinct propositions of law:

First. That the court had not jurisdiction of the subject of the action.

Second. That the complaint did not state facts sufficient to constitute a cause of action.

Third. That the plaintiff had not legal capacity to sue.

These issue were to be severally decided by the court, and the only manner in which its decisions could be properly entered in the judgment roll and in the record on appeal, was by the decision in writing to be made and filed as required by the section of the statute above quoted.

Without such decision, the case is not properly here for review. If such decision has been made and filed, the record may be amended b.y its insertion. If it has been made and not filed, application may be made at special term for leave to file it nunc pro tune.

If such decision has not been made and cannot be supplied by reason of the retireinent from office of the judge who tried the demurrer, it would seem to be a case of mistrial, and the parties must avail themselves of such remedy as the practice affords. We must decline to consider the appeal upon the record as it stands.

All concur.