Whitney v. Belden & Belden — 4 Paige Ch. 140

Majority

p. 140

Whitney vs. Belden & Belden.

Headnote

Neither party can have any benefit from a decision of the court, until the order upon such decision is drawn up and perfected. And where it is material to either, party, the caption or date should be made to correspond with the time of the actual entry of the order.

Where the party, who is entitled to draw up the order, enters it as of the time the decision of the court was pronounced, he cannot afterwards object that it was not actually entered at that time.

If the party entitled to draw up the order, on a decision of the court, neglects to do so for twenty-four hours after the decision is pronouncedj aliy other party, interested in the entry of the order, may apply to the register or assistant register at the place where the decision was made, to draw up and enter the order, in conformity with the decision of the court.

Where an order is special in its provisions, the party entitled to draw up the same should submit a copy thereof to the adverse party, that he may propose amendments thereto, before it is submitted to the register to be settled and entered.

July 16.

This was an appeal from an order of the vice chancellor of the first circuit, ordering certain amendménts to the complainants’ bill to be taken off the files of the court. The order ivas founded upon a certificate of the clerk that the decision of "the vice chancellor, allowing exceptions to the defendants’ answer, was made on the 3d of December, 1832, and that the amendments were not filed until the 22d of the same month. The order allowing the exceptions to the answer, and which was. served by the complainants’ solicitor on'the adverse party, also, purported to have been made oh the 3d 'of December. But the complainants’ counsel read ah affidavit, in opposition to the motion, stating that he ivas hot present when the "decision upon the exceptions was made, that the order founded on that decision was not in fact entered until the 7th "of December; and "that on the 17th of December, the defendants’ solicitor stipulated to allow thé complainants

p. 141

six days longer to amend their bill, provided they had a right to amend at the time such stipulation was given.

R. Sedgwick, for the appellant.

/. W. Gerard, for the defendants.

Although the decision of the vice chancellor, upon the exceptions, was made on the 3d of December, neither party could act upon or have any benefit from that decision, until the order was drawn up and perfected. In England, if the order is of course, without any special provisions, as in this case, the register draws it up in the usual form, and after it is entered in the minutes, he signs and passes it, which completes the entry of the order; after which it may be acted on by either party. Here, the solicitor for the party obtaining the order, or in whose favor a decision is made, draws up the order, and delivers it to the register to be passed and entered, or procures it to be drawn up and passed by the register; after which the order is considered perfected, so that either party may be allowed to act upon it, or to take copies thereof. And if the party entitled to draw up the order neglects to do so, for twenty-four hours after the decision of the court is pronounced, any other party interested in having the order entered, may apply to the register or assistant register where the decision was made, to draw up and enter the order, in conformity with the decision of the court, at the expense of the party so requesting the register to draw and enter the same. If the order is special in its provisions, the party entitled to draw up the order should submit a copy thereof to the adverse party, to enable him to propose amendments thereto, if he shall think proper. The draft, and the amendments proposed, if any, are then to be delivered to the register, that the order may be settled by Mm and entered. And where the register cannot understand the decision of the court so as to be able to settle the order in conformity therewith, he is then, and m that case oMy, to apply to the court to settle the order. Where it is of any importance to either party that the true time of entering the order should appear, the date or caption

p. 142

of the order should be made to correspond with the time of its actual entry or allowance by the register. I infer from the . ,. , , , ° . , ' , papers m this cause that the order was either drawn up by* the solicitor for the complainants as of the time when the decision was made, or at least that he sanctioned the entry of the order as of that date by serving a copy thereof on the solicitor of the defendants; upon which copy they founded their application to take the amendments off the files of the court, as not having been made within the ten days, as required by the 45th rule. After the service of such an order, I think the complainants werenot authorized to repudiate it, by alleging it was not in fact drawn up and entered at the time when, from the caption, it purported to have been made. And they should have filed and served their amendments within ten days from the date of the order, as drawn up and served. The order of the vice chancellor directing the amendments to be taken off the files, must therefore be affirmed, with costs,