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Inglehart agt. Johnson.

SUPREME COURT.

INGLEHART, Administrator, &c. of JOHNSON, agt. JOHNSON. Actions triable in Erie county, require all motions in relation to them to be

made in the Sth district, as there are no counties out of that district adjoining

Erie. Therefore a motion noticed in Monroe to dissolve an injunction in an action triable in Erie, held irregular.

Monroe Circuit and Special Term, Nov. 1850. Motion to dissolve or vacate injunction order. The county specified in the complaint as the place of trial is Erie.

A preliminary objection was made to hearing the motion, that Monroe county does not join Erie county, and the motion can not be heard in the former county, not being in the 8th district. Geo. MUMFORD, for Defendant.

for Plaintiff WELLES, Justice.- Although Monroe county is adjoining to the eighth district, yet it does not adjoin the county of Erie, which is designated as the place of trial of the action.

By g 401 of the Code, motions must be made within the district in which the action is triable, or in a county adjoining that in which it is triable, except that where the action is triable in the first judicial district, the motion must be made therein." The defendant's counsel supposes the true reading of the passage quoted, to be that the motion must be made in the district in which the action is triable or in a county adjoining such district. I think, however, the antecedent to the pronoun "that," in the passage in question, is “county," and means the same as if the sentence had been “or in the county adjoining the county in which it is triable.” Such has been the received and practical construction of the section referred to, so far as I know. The motion is, therefore, irregularly noticed here, and must be made in the 8th district, there being no county out of that district adjoining Erie county. Motion denied.

People agt. Baron.

SUPREME COURT.

THE PEOPLE agt. BARON.

Where the printed cases, or error books, do not show a return made by the

clerk below, the appellate court have no authority to hear the argument. Where irregularities in settling a bill of exceptions are complained of in the

appellate court, they will stay proceedings for an application to be made in the court below (where it properly belongs) for correction.

Monroe General Term, September 1850—Before WELLES, P. J. and SELDEN and JOHNSON, Justices. Motion to set aside proceedings subsequent to settlement of bill of exceptions.

The defendant's counsel also moves to bring on the argument of the writ of error, and presents the printed cases or error books for that purpose.

S. V. R. MALLORY, Dist. Atty Ontario co. for the People.

A. WORDEN, and E. G. LAPHAM, for the Defendant. By the Court, Welles, P. Justice.—The error book does not show that the clerk of Ontario county has ever made a return to the writ of error. This court is not, therefore, officially informed that such return has been made, and until that is done we can not hear the argument; we have nothing upon which to affirm or reverse the judgment in the court below.

There are various irregularities in obtaining the signatures of the justices in the court of sessions to the bill of exceptions, and in making up the record, complained of on the part of the defendants in error.

These we can not listen to for the purpose of making any other order than to stay proceedings here to allow the district attorney to move in the court below to have them corrected. That court has the exclusive power in those respects, and the only way in which we can interfere is by mandamus to set them in motion, on a proper state of facts appearing. For that purpose it should be shown that the court below refuse to act in reference to the matters complained of, which is not shown here.

Barnum agt. Seneca County Bank.

I think, therefore, the cause should be stricken from the calendar, and proceedings stayed until the next term of the court of sessions of the county of Ontario, to the end that the district attorney may then apply in that court for such relief in relation to the supposed irregularities as he may be advised. Ordered accordingly.

SUPREME COURT.

BARNUM agt. THE SENECA County BANK.

SUYDAM AND OTHERS agt. THE. SAME AND OTHERS.

Where an appeal is taken from an order of the circuit judge, putting the cause

over the circuit on certain conditions-a motion to dismiss such appeal should be made at the general term.

Niagara Special Term, February, 1851. These are actions in which relief of an equitable character is sought. Before the adoption of the present constitution of this state, jurisdiction of these would have belonged to the Court of Chancery. They were noticed for trial by the defendants and put on the calendar at the last Erie county Circuit Court. The plaintiffs moved to put them over the circuit. These motions were opposed by the defendants, who moved that the complaints be dismissed unless the trial proceeded. The judge holding the circuit, ordered the causes to go over upon certain specified conditions to be performed by the plaintiffs, and in case those conditions were not complied with, directed the complaints to be dismissed. From these orders the plaintiffs appealed to the general term.

Mr. D. TILLINGHAST, now moves to dismiss the appeals upon affidavits showing, as he claims, that the requisitions of the Code, to render an appeal effectual, have not been complied with; and upon the further ground that the decisions at the circuit are not the subject of appeal under the Code.

Barnum agt. Seneca County Bank.

Mr. H. GARDNER, for the plaintiffs, objects that these motions can not be heard at a special term; that they must be made at a general term.

· Sill, Justice.—A general term of the Supreme Court, and a special term or circuit, stand to each other in the same relation which has ordinarily existed between courts of appellate and courts of original jurisdiction. It has always been understood to be the province of the court of appeal to determine for itself, of what cases and questions it has jurisdiction, and likewise how and when it was obtained. The exercise of this power by the appellate tribunal, would seem indispensable to a full and perfect enjoyment of the important right of appeal.

The points presented here relate to the jurisdiction of the general term, and upon prínciple as well as by precedent, their decision belongs there.

These appeals are in character, much like an appeal under our former judicial system, from a vice chancellor to the chancellor. A motion to dismiss such an appeal was uniformly made to the chancellor.

There are cases in which the court, from whose decision an appeal has been attempted, has passed indirectly upon the effect of the measures adopted for that purpose, by directing its own decree to be executed notwithstanding the appeal. But I have not been able to find any decision holding that the inferior tribunal possesses the power to dismiss an appeal taken from its own order or judgment. If the exercise of such authority were allowed, a party might always be deprived of the right of appeal by the successive erroneous decisions of the tribunal whose judgment he is seeking to review.

I do not consider this reasoning any the less applicable to these motions, because the orders in question were made at a circuit, and these motions are at a special term. One officer holds both these courts, and these motions might at the defendants' option, have been made at a special term, held by the same judge who made the orders appealed from.

It is said by the defendants' counsel that these applications

Sayles agt. Wooden.

are made at the special term in obedience to the 30th standing rule of the court. This rule directs that non enumerated motions shall be heard at special terms, except when otherwise directed by law.

The considerations already adverted to, would be sufficient to show that this rule was not intended, and should not be construed to embrace motions like the present, even if it had not contained any express exceptions.

But, as has already been remarked, the practice of addressing to the appellate courts motions to dismiss appeals, was uniform and settled. The preexisting practice, not inconsistent with the Code, was continued by the 469th section, until changed by the court.

It is not, perhaps, unreasonable so to construe this section as to bring these cases within the exception specified in the rule.

But if this should be considered too artificial an interpretation of the statute, I should still be of the opinion that these motions should be made at a general term.

The motions are accordingly denied without costs, and without prejudice to any application that may be made at the general term.

SUPREME COURT.

SAYLES agt. WOODEN.

In pleading to an action of slander, it is not a sufficient justification to answer,

that if the words were spoken as stated in the complaint, they are true. The defendant must state such facts as will show that the plaintiff is guilty of the

crime imputed to him (see 4 How. 98, 347.) Hypothetical pleading is not allowed (see 5 How. 14, 470.)

Saratoga Special Term, December, 1850. Demurrer to an answer in an action of slander. The facts will sufficiently appear in the opinion of the court.

Wm. H. KING, for Plaintiff.
KIRTLAND & SEYMOUR, for Defendant.

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