Delano v. Harp — 44 N.Y. Sup. Ct. 275

Majority

p. 275

MILTON DELANO, Respondent, v. SIMON S. HARP and Others, Appellants.

Headnote

Practice — when a case must be made, in order to enable the General Term, to review a judgment— Code of Gwil Procedure, sec. 997.

'To enable tbe General Term to review upon appeal a judgment, entered upon tbe verdict of a jury directed by the court, a case must be prepared and settled as required by section 997 of the Code of Civil Procedure. If this be not done the appeal brings nothing before the appellate court which it can review.

Appeal from a judgment, entered upon a verdict directed by tbe •court at tbe Madison Circuit in February, 1879.'

The appeal' book contained no case or exceptions, but simply tbe judgment-roll, consisting of tbe summons and complaint, with proof of service, tbe answers, judgment, notice of appeal and certificate of tbe clerk. Tbe judgment was in these words, following the title •of tbe cause, viz.:

“ This action having been tried by Mr. Justice Marten and a jury .at a circuit court held at tbe Court-house in Morrisville, in and for ■said county, on the 19th day of February, 1879, before tbe Hon. Celora E. Marten, and tbe court having directed tbe jury to find ••a verdict for said plaintiff for the sum of $468.39, and said verdict having been entered in tbe minutes of tbe said court, now, on motion of G\ A.'Forbes, plaintiff’s attorney, it is hereby adjudged •by tbe court that tbe plaintiff recover of the defendants tbe sum of $468.39 damages, together with the costs of this action, taxed at .$159.63, in all amounting to the sum of $628.02.

“JOHN N. WOODBURY, Clerk.”

Tbe certificate of tbe clerk mentioned simply tbe judgment-roll .and notice of appeal.

E. J. Brown, for tbe appellants.

G. A. Forbes, for tbe respondent.

Tbe appeal from a final judgment, authorized by section 1346 of tbe Code of Civil Procedure, is required to be beard upon a certi-

p. 276

fled copy of tbe notice of appeal, judgment-roll and case or notice of exceptions, if any. (Sec. 1353.)

J3y section 997 a party intending to appeal from a judgment rendered after tlie trial of an issue of fact is, “ except as otherwise prescribed by law,” required to make a case and procure the same-to be settled and signed. The next section provides that it is not necessary to make a case where a party intends to appeal from a judgment entered upon a referee’s report, or a decision of the court, upon a trial without a jury, and to rely only upon exceptions taken after the close of the trial by the court or referee. (Secs. 994 and 998.) There is no provision dispensing with a case, when the-appellant intends to review a final judgment only, entered upon the verdict of a jury. This appeal, therefore, brings nothing before-us that we can review. (Code Civil Pro., §§ 994, 997, 998 and 1346; Smith v. Starr, 70 N. Y., 155 ; 4 Wait’s Pr., 303.)

There is nothing in the judgment-roll to raise any of the questions of law that have been argued by the learned counsel for the-appellants with so much zeal. There is no objection or exception to direct the attention of the court to any subject whatever. Even if the complaint sets forth an illegal contract, there is nothing to-show that the illegality was not waived or cured by an amendment upon the trial. Not one of the defenses urged upon this appeal is pleaded in either answer and all of the defendants allege that another bond “ of like form, import, force and effect,” to that in question,. “ and with like conditions and wording, * * * since its delivery has been, and now is in the hands of the plaintiff herein, a valid- and subsisting security.”

The appellants cannot make this appeal, supported only by the judgment-roll, perform the office of a demurrer to the complaint, because any defect in the pleadings may have been remedied at the trial. So far as appears the defendants may have made default at the circuit, and the jury may have been directed to render a verdict as upon an assessment of damages, or the direction to the jury may have been given with their consent or even at their express request.

No error, calling for a reversal of the judgment, can be made to appear when the trial was before a jury, and the appeal is heard upon the judgment-roll only. Even where the trial is before a. referee, or before the court without a jury, unless exceptions are

p. 277

■filed before the entry of judgment and they are inserted in tbe judgment-roll in accordance with section 994, an appeal, heard only upon the judgment-roll, would present no question for decision. If the decision of a question of fact can be reviewed, when the evidence is spread before the court, without any exception, no question •of law can be raised for determination without an exception in some form.

The judgment should be affirmed, with costs.

HaediN, P. J., and Follett, J., concurred.

Judgment affirmed, with costs: