p. 520Headnote
A rule or order for a commission to examine witnesses, does not operate, per se, as a stay of proceedings; if it is intended so to operate, the court or judge will so direct.Motion to set aside proceedings for irregularity. Issue was joined in this case on the 23d December, 1830. ' By a stipulation between the parties, the cause was referred to referees on the 5th February thereafter. On the 15th March, the defendant gave notice of an intended application to a circuit judge for a commission to examine witnesses, to be made on the 25th March, 1831, and on that day an order for a commission was granted by the circuit judge, but no direction made as to a stay of proceedings. The plaintiff proceeded, noticed the cause for hearing, obtained a report on the 3d May in his favor, and entered rule for judgment. The defendant now moves to set aside all proceedings on the part of the plaintiff subsequent to the- order for a commission, he the defendant having refused to appear before the referees, insisting that the rule for a commission was in itself a stay of proceedings, and that the plaintiff was not at liberty to proceed until the return of .the commission, or until the rule was vacated.
By the Court,
By,the ninth rule of April term, 1796, which continued in force until the 1st January, 1830, a rule for a commission to examine witnesses did not operate as a stay of proceedings, unless obtained within the first four days of the term succeeding the joining of the issue, if the cause was put at issue in vacation. If the rule was obtained after such four days elapsed, it did not stay the proceedings, unless so directed by thé court on application for that purpose. 18 Johns. R. 136. The rule of 1796 was founded upon thé statute which authorised the issuing of a commission to examine witnesses upon such terms as the court should think proper. 1 R. L. 519, § 11. The rules adopted in October term, 1829, are silent as to the issuing of a commission, and the effect of a rule for that purpose, in regard" to staying proceedings ;
p. 521consequently there is no general rule of court declaring that a rule for a commission shall in any case operate as a stay of proceedings, and unless it is so ordered by the court, a rule for a commission does not operate as a stay of proceedings, as the commission still issues upon such terms as the court shall think proper to direct. 2 R. S. 393, § 11.