Pelletreau v. Moore — 9 Wend. 493

Majority

p. 493

Pelletreau vs. Moore.

ALBANY,

March, 1833.

Headnote

Where there is an order to stay proceedings until the settlement of a bill of exceptions, the party tendering the bill is entitled to a reasonable time, after attending before the judge for settlement, to engross the bill and obtain the signature of the judge, and until the judge’s signature is obtained, the bill is not settled, and a judgment entered previous thereto will be set aside as irregularly entered. - ‘

A verdict having been obtained by the plaintiff the defendant obtained an order to stay proceedings until the settlement of a bill of exceptions. The bill was settled on the seventh day of March. On the eighth, the plaintiff not having been served with a further order to stay, signed judgment. On the eleventh, the defendant obtained an order that there was probable cause to stay the proceedings, which, on the thirteenth, was served on the plaintiff and a motion is now made to vacate the judgment entered by the plaintiff as having been entered irregularly, on the ground that until the eleventh, the defendant was not able to engross the bill for the signature of the judge.

By the Court,

The question is, had the judge’s order for the settlement of the bill expired on the eighth day of March? Had the bill been settled within the meaning of the order ? After settlement, the plaintiff is regular, under the act of 1832, Laws of 1832, p. 188, in perfecting his judgment and issuing execution, unless a new order is granted. Here, however, the bill cannot be considered as settled until the eleventh of March. The party tendering a bill should have a reasonable time after settlement to incorporate the amendments, and engross the bill for the signature of the judge; until signed, it is subject to modification by him, and therefore unsettled. Previous to the signature of the judge, and consequently before the bill was settled, the judgment was entered, which was a violation of the first order to stay. The plaintiff was irregular and the judgment is set aside.