Lawrence v. Bank of the Republic — 29 N.Y. Super. Ct. 497

Majority

p. 497

Frederick N. Lawrence et al., assignees &c., plaintiffs, vs. The Bank of the Republic, defendant.

Headnote

1. Although an entry of judgment upon a remittitur from the Court of Appeals, with the costs inserted therein as adjusted, in the absence of the attorney of the unsuccessful party, is irregular, the whole judgment is not void for irregularity in inserting such costs. The irregularity, being confined to the entry of the award of the costs, can be corrected by amending the judgment roll, docket and execution, by striking it out.

2. A single judge of the Court of Appeals cannot stay proceedings by an ex parte order, absolutely, after a remittitur has been issued and placed in the hands of the prevailing party. An entry of judgment in pursuance of the remittitwr will therefore be formally correct, notwithstanding such an order.

(Before Robertson, Ch. J., at Special Term,

August 22, 1866.)

This was a motion to set aside a judgment entered in this court, according to a remittitur from the Court of Appeals which reversed a judgment at general term, reversing a prior judgment at special term, and affirmed the latter,, judgment. On a certain day (July 12th) the plaintiffs’ attorney gave notice of an adjustment of his costs by the clerk of the court at his office, at a certain hour (10 o’clock) of the morning of the second day thereafter, (14th,) and of entering judgment upon such remittitur at half an hour afterwards, (10-|- o’clock.) Fext day (the 13th) an order was granted by one of the judges of the Court of Appeals, staying proceedings absolutely, for ten days. On the day fixed by such notice for the adjustment of costs, and at or before the hour designated therein, a copy of such order staying proceedings was served on the plaintiffs’ attorneys, at their office; but notice of it was verbally given by the defendant’s attorney to the clerk of such attorneys, in the office of the clerk of the court, who thereupon abstained at that time from having such costs adjusted, although they were adjusted at a later hour of. the same day. The motion for judgment on the remittitur was not made, although the latter had been filed by a clerk of the attorneys for the

p. 498

plaintiffs before any notice to him of the stay of proceedings. Ho evidence was furnished of the exact time of filing such remittitur, except an affidavit of. one of the attorneys for the plaintiffs, that he inferred that it was filed before such service of a copy of the stay of proceedings, from the speediness of his clerk’s return after the service of such order, after being dispatched to file such remittitur. The attorneys for the plaintiffs, later in the same day, entered judgment according to the remittitur,' with an award of the costs, which had been adjusted ex parte, and served notice of readjusting such costs at a future day, and of being ready to deduct any sum stricken from the amount of such costs,

on their being readjusted. Such costs were readjusted on the day fixed in such notice.

J. Larocque, for the plaintiffs.

T. H. Rodman, for' the defendant.

The first question on this motion, which presents itself, is whether the entry of the judgment on the remittitur, with the costs inserted as adjusted in the absence of the defendant’s attorney, was irregular. The Co'de provides (§ 311) that “the clerk shall insert in the entry of judgment, * * upon two days’ notice, the sum of the allowances for costs, as provided ” thereby, “necessary disbursements,” &c. This was properly and finally decided by this court (all the justices concurring) only to make the entry of costs in the judgment without notice of adjustment, and all subsequent proceedings containing such erroneous award of costs, and not the judgment itself, irregular. (Gilmartin v. Smith, 4 Sandf. 684 .) And such principle was sustained by the Supreme Court, in Mitchell v. Hall, ( 7 How. 491 .) I do not understand that it was intended, in either case, to hold the whole judgment to have been void for irregularity in inserting such costs. The irregularity, therefore, being confined to the entry of an award of the

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costs, could be corrected by amending the judgment roll, docket and execution, by striking it out. So that it still remains necessary to determine how far a single justice of the' Court of Appeals can stay proceedings, by an ex parte order, absolutely, after a remittitur in the hands of a prevailing party.

All the cases coincide in the view that all jurisdiction of the appellate court is parted with after judgment on appeal, and the filing of a remittitur in the court below. (Martin v. Wilson, 1 Comst. 240. Burkle v. Luce, Id. 239. Frazer v. Western, 3 How. 235 . Latson v. Wallace, 9 id. 334 . Dresser v. Brooks, 2 Comst. 559.) The only remedy for an error in the substance of the judgment remitted, seems to be a new appeal. Irregularities may be cured on motion, (Palmer v. Lawrence, 5 N. Y. Rep. 455 ; Newton v. Harris, 8 Barb. 306 ,) after a return of the remittitur by the court below, on request. But such request must be made by resolution by the appellate court as a body, and not by the order of any member of it. (Selden v. Vermilye, 3 Sandf. 683 . Bogardus v. Rosendale Manufg. Co., 1 Duer, 592 . Newton v. Harris, ubi sup.) Upon the correction of any irregularity, the judgment of the court below may be made to conform to the amended remittitur. (Id.) The Code (§ 12) prescribes that “the judgment óf the Court of Appeals shall be remitted to the court below, to be enforced according to law.” Meaning, undoubtedly, as such judgment never had previously been that of the court below, “transmitted.” This confers the right, and imposes the duty, on the. court below to enforce, as such, the judgment of the court above. To do which, by its ordinary process and machinery of executing justice, it is compelled tq enter a corresponding formal judgment of its own. The conformation by the court below of its prior judgment to that of the appellate court, where it is merely one of simple affirmance or reversal, is a purely formal act. (Union India Rubber Co. v. Babcock, 4 Duer, 620 .) • The omission to procure it may be supplied by the court below, and is dis

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regarded in the appellate court. (Chautauqua Co. Bank v. White, 23 N. Y. Rep. 347 .) The mere possession, even, by the prevailing party, of a remittitur directing a new trial, without filing it, has been held sufficient to sanction' such new. trial. (Judson v. Gray, 17 How. 289 .) ' It is true, that if the remittitur contains special provisions to be carried out by the court below, it seems to be more regular, if not indispensable, to have the order settled and entered. • (Seacord v. Morgan, 17 How. 394 .) '

The order, therefore, made in this case by a single justice of the Court of Appeals, was without jurisdiction, so far as the entry of a judgment in this court was concerned, and the entry of such' judgment was formally correct, as the judgment of the appellate court was merely one of reversal of one at general term, leaving that at special term to stand.

. Moreover, the 18th rule of the Court of Appeals only confers the power on that court to stay proceedings upon an order of a single judge, when “ served with papers and notice of motion,” which was not done in this case. An absolute stay of proceedings would be a perpetual injunction order, which no judge of the appellate court has a right to grant.

"With every respect for the learned judge who granted the order in this case, I cannot doubt that it was extra judicem, and so his subsequent revocation of it seems to indicate was his own opinion.

The motion to set aside the judgment and execution for irregularity must be denied, with $7 costs.

Cases cited

Gilmartin v. Smith 4 Sandf. 684 N.Y. Super. Ct. 1852-01-10 p. 498
Newton v. Harris 8 Barb. 306 N.Y. Sup. Ct. 1850-04-16 p. 499
Selden v. Vermilya 3 Sandf. 683 N.Y. Super. Ct. p. 499