text:
    Gustavus A. and Ernest Scheidt, Plaintiffs, v. William Sturgis, Jr., et al., Defendants.
    1. An application, by a stranger to a suit, to be allowed to intervene and be made a defendant, in order that he may litigate the plaintiff’s claim and set up a claim against the original defendants adverse to, and exclusive of, that of the plaintiff, is not a matter of strict right, but rests in the discretion of the Court.
    2. Such an application should be denied where the applicant is prosecuting a separate action adapted to secure all the relief to which he claims to be entitled.
    3. So, too, after he has prosecuted such separate action to a trial upon the merits, an application made by him to have a judgment recovered in the former action set aside, on the ground of fraud and collusion, should not be granted.
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Heard, December 6;

    decided, December 27, 1862.
    This action was a creditor’s suit, brought by the plaintiffs against William Sturgis, Jr., Henry Shaw, William Shaw, Latimer Bailey and Robert Bennie, and it now came before the Court upon appeals taken by George. B., John R., and Stanton Blake and Gamaliel Bradford, composing the firm of Blake Brothers & Go., and also by the Bank of Mutual Redemption, from orders denying applications made by them respectively, to be made defendants, and to have a judgment which the plaintiffs had recovered, opened.
    This action was commenced February 14,1862, in behalf of the plaintiffs, and all others in like position who might choose to come in and contribute to 'the expenses of the suit, to obtain a judgment to the effect that certain merchandise, described in the complaint, and which had been consigned by the defendant, Bennie, to the other defendants, comprising the firm of Sturgis, Shaw & Go., was, in equity, applicable to the payment of bills of exchange drawn by Bennie on Sturgis, Shaw & Go., and accepted by the latter one of which accepted bills is owned by the plaintiffs, and directing the said property and its proceeds to be so applied.
    It-also sought to effect a similar application of a bond and mortgage, dated August 2, 1861, executed by said Bennie and his wife to Sturgis, Shaw, & Oo.,„ conditioned for the payment of $150,000.
    On the 17th of February an order was made in the action, that it be referred to a Beferee to appoint a Beceiver of the said property; and such proceedings were had, that by order dated February 27, 1862, the appointment of Ogden Haggerty as such Beceiver was declared to be perfected.
    On the 17th of March, 1862, the firm of Blake Brothers & Go., holders of certain of said accepted bills of exchange, applied to this Court, upon petition, for an order that they be made parties defendants in this action. They stated in their petition, that on the 18th of December, 1861, they commenced a suit in the Supreme Court against the present defendants, as drawers and acceptors of the said bills owned by them, and duly obtained thereon an attachment against the property of said Bennie as a non-resident debtor, and caused it to be served on Sturgis, Shaw & Co., with the intent and for the purpose of binding and attaching any property of Bennie then in their hands.
    They claimed that they thereby obtained a lien on the merchandise and property in question, by virtue of which they were entitled to be paid, in preference to the plaintiffs, out of the said property and its proceeds. That motion was denied, by order dated the 29th of March, 1862, and from that order Blake Brothers & Co. appealed to the General Term.
    The Bank of Mutual Bedemption also applied, upon like petition and on similar grounds, to be made defendants, which was denied by an order of the same date, and from the latter order the said bank appealed to the General Term.
    On the 6th of October, 1862, this action was brought to a hearing, and an order or judgment was entered deciding and adjudging, inter alia, as prayed in the complaint herein, and directing a reference, for various purposes therein specified.
    Blake Brothers & Co. and the Bank of Mutual Eedemption, on being informed thereof, applied by motion in this action, to set aside and vacate said order or judgment as collusive and as fraudulent, as against them, which motion was denied, by order dated November 8,1862, and from the latter order the Bank of Mutual Eedemption appealed to the General Term.
    All of these appeals were argued together
    It appeared by the papers on which the last mentioned motion was made, that an action was then • pending in this Court, in which that bank was plaintiff, and the defendants in this action, and Blake Brothers & Co., and Ogden Haggerty, as Eeceiver and special assignee of Sturgis, Shaw & Co., were defendants; that it was tried on the 25th of June, 1862, and on the 15th of October, 1862, was undecided.
    Upon the decision of the motions to be made defendants, the following opinion was rendered:
    Robertson, J., (after stating the facts.) The determination of these motions must depend mainly upon the interests of Sturgis, Shaw & Co. in the merchandise consigned to them by Eennie, and their duties growing thereout to him, and the holders of the securities for which they have become bound upon the faith of such merchandise; the interest of Eennie in such merchandise; the effect of the actions in the Supreme Court by the present applicants, and the proceedings therein, upon such rights and interests; and the nature, object and effect of the present action.
    It is very evident that Sturgis, Shaw & Co. held the merchandise in question in the double capacity of agents of Eennie for its sale, and as pledgees of the same, and the proceeds as security for any amount for which they might be liable upon the acceptances advanced by them; they could not use their power, or abuse their discretion as agents, in such manner as to sell the goods merely for the purpose of reimbursing themselves; and they could only sell as pledgees upon notice or foreclosure in equity; of course Rennie retained the ownership of the goods, subject to their hypothecation for such advances, and could at any time redeem them by relieving the pledgees from all liability. As between Rennie and Sturgis, Shaw & Co., therefore, the former had an interest capable of being seized upon attachment against him, or sold upon execution. But, by the peculiar character of the advances made by Sturgis, Shaw & Co., to secure which the goods in question were pledged, a third character has devolved upon them, that of quasi trustees for the creditors1 of Rennie, to whom they became liable on the strength of such merchandise.
    It seems to -be a familiar and well settled principle in elementary works and digests, sustained by authorities applyiug it in various ways, in the Courts of England, this State, and our sister States, (4 Kent’s Com., 307, 6th ed.; 1 Story Eq., §§ 502, 638; Com. Dig., ch. 4; D.C. Mann, v. Harrison, 1 Eq. Ca. Abr., 93, K., 5; Dering v. Earl of Winchelsea, 1 Lead. Ca. Eq., 87, n.; Wright v. Morley, 11 Ves., 22; Yonge v. Reyneil, 9 Hare, 809; Baltic of Auburn v. Throop, 18 Johns., 505; Curtis v. Tyler, 9 Paige, 432; Tail v. Foster, 4 Comst., 312; Havey v. Foley, 4 Benn. Mo., 136; Houston v. Branch Bank, 25 Ala. R., 250; Bibb v. Martin, 14 Lin. & M., 88; Bush v. Stamps, 26 Miss. R., 463.; Dozin v. Lewis, 27 Miss. R., 677,) that creditors to whom a surety is liable upon a contract may reach any securities placed by the principal debtor in the hands of such surety to indemnify him, and have them applied to the payment of their debts, if not satisfied by the principal, but they would seem to be entitled to this course solely as representatives of the principal debtor claiming through him. (Ex parte Waring, 19 Ves., 349; Ex parte Hobhouse, 2 Deacon, 291; Bowles v. Hargrave 19 Law & Eq., 263; 8. C., 23 Id., 62, 63.)

      Whether there is any priority in such case, according to the time in which the creditors became such, and made their advances, or whether the making of the advances by the surety under a general agreement to make advances and hold the goods as security for whatever advances he might make, would place all to whom such surety should bind himself upon the same footing, does not clearly appear by any of the cases. Ho such agreement is alleged in the complaint, although it assumes that all the parties who had the acceptances of Sturgis, Shaw & Co. are to come in upon an equal footing. Hor does the relation appear by such cases exactly between the creditors and the surety in regard to the collateral securities. Jurisdiction is assumed by the Courts of equity upon the ground of a trust, and the surety is treated as a quasi trustee, to whom such securities are delivered to hold, not only for his own protection, but also for the benefit of the creditors. I apprehend, however, that he is to be considered only as pledgee in trust, not having a right of possession as entire owner, and that his interest in the goods only extends to the amount of his liability for the advances; the constructive trust in such case arising as those implied from frauds or otherwise arise, to prevent a failure of justice, because common law Courts furnish no adequate remedy. In such case, therefore, I apprehend an equity of redemption still remains in the mortgagor, liable to attachment and execution against him, and that his rights therein cannot be foreclosed without notice or an action.
    The plaintiffs in this action have no other interest in the goods in question, than, jointly with others similarly situated, including the present applicants, to take the place of Sturgis, Shaw & Co., as the makers of advances in regard thereto, and that no proceedings in this action can divest Mr. Bennie, or any one claiming under him, by an attachment, or levy under execution, of his equity of redemption therein ,v it is simply an action to protect the plaintiffs, and others similarly situated, against the consequences of the insolvency of Sturgis, Shaw & Co., and to transfer to a Receiver, or new Trustee, the rights and possession of the latter, for the benefit of those who prosecute such action. Such Receiver or Trustee stands in no better light than an assignee of Sturgis, Shaw & Co., and the plaintiffs, and all others to whom such firm is liable, and, therefore, cannot deprive Mr. Rennie, or his attaching creditors, of their right or lien on the goods, without notice or foreclosure.
    The applicants stand in the double relation of cestui que trusts of Sturgis, Shaw & Co., of so much of the value of the goods in question as would be necessary to indemnify the latter, and attaching and execution creditors of Rennie, as to his equity of redemption; in th§ latter capacity they have no interest in taking the property out of the hands of Sturgis, Shaw & Co., to preserve it for those to whom the latter are liable, and, therefore, their attachment, judgment, and execution in their Supreme Court actions confer on them no equity in this, as they cannot be prejudiced by anything done in it; on the contrary, in one of these actions, they seek to sweep away the obstacles interposed, by the interest and possession of Sturgis, Shaw & Co., which this action seeks to reach, to a sale under their attachment and execution, aud sell the property by virtue thereof. Should they succeed in doing so, I apprehend they would be compelled to abandon any rights thereby acquired, before they would be allowed, in any proceeding for the marshaling of securities, to come in upon a footing of equality in the distribution of the interest of Sturgis, Shaw & Co. in such property or its proceeds.
    The applicants, in their petition, assume a hostile attitude to the plaintiffs, and allege that this action is brought collusively, to transfer the possession from Sturgis, Shaw & Co. to a Receiver of their choice, to embarrass the applicants; possibly that might furnish a ground for defeating the action, if the applicants were already defendants, but it can furnish none for admitting them, as such, when their only right to come in is founded upon a readiness to further the action, and a common interest in the relief to be obtained in it; the very fact of making of the application, on such a ground, before a judgment for the distribution of any proceeds by a Receiver or Trustee, when no further defense can be interposed in it, and until which time the action can be withdrawn by the prosecuting parties, shows the intent to be to defeat, not promote, the action. If any rights could be acquired by a Receiver or Trustee appointed in this action adverse to those of the petitioners, such collusion might be good ground in a new and independent action by them to prevent any judgment therein from prejudicing them, if necessary, in a case where they are not parties.
    As a mere participant in the interest of Sturgis, Shaw & Co. in this fund, the petitioners are premature in applying to be made parties before judgment, nor do I think that the Code has altered this rule. The 122d section, which requires the Court to cause all parties to be brought in, without whose presence “ a complete determination of the controversy cannot be had,” is inapplicable to this case, for these reasons: 1st. A determination can be had without the presence of the applicants, until the judgment for distribution, under the 119th section, which allows a suit or defense by one of all having a common interest. 2dly. The present applicants are brought in by the judgment, if they avail themselves of its benefits. And, lastly, there are no persons whose rights are to be settled before the rights of those who are the parties to the suit, and the application is not by a defendant. (McMahon v. Allen, 12 How., 39.)
    The remedy of the applicants to protect themselves from .injury could only'be by making the Receiver in this case a party to their action in the Supreme Court, if they can ido so, or applying there for relief for any violation by Sturgis, Shaw & Co. of the orders of that Court, by anything done in this suit.
    I do not think the applicants have made out a case for the interference of this Court at present, and the motion must be denied, with seven dollars costs in each case.

      J. M. Van Cott and J. W. Edmonds, for the appellants.
    As to the relative rights of the applicants (appellants) and the plaintiffs, cited Bank of Auburn v. Throop, (18 Johns., 505;) In re Smith, (16 Id., 102;) Robbins v. Cooper, (6 Johns. Ch., 186;) Hill v. Beach, (1 Beasley, 44;) Brantingham v. Brantingham, (Id., 160;) Ex parte Waring, (19 Vesey, 349;) Powles v. Hargreaves, (19 Eng. L. & Eq., 263; 23 Id., 62, 66;) Marine Bank v. Jauncey, (3 Sandf., 257;) Winter v. Drury, (Id., 263, note;) Cowperthwaite v. Sheffield, (3 Comst., 243;) Greene v. Breck, (32 Barb., 73;) Artizan's Bank v. Treadwell, (34 Id., 553;) Skinner v. Stuart, (13 Abbotts’ Pr., 442;) and,
    As to the necessity of making the applicants' parties, cited Story’s Eq. Pl., ch. 10; Calvert on Parties, ch. 1, §§ 1-3; Hallett v. Hallett, (2 Paige, 22;) Grace v. Terrington, (2 Colly., 53;) Code, §§ 118, 122; General Mut. Ins. Co. v. Benson, (5 Duer, 168;) Dean v. Chamberlin, (6 Id., 691.)

      Mathews & Swan, for plaintiffs, respondents.
    I. If the petitioners are willing to stand upon an equal footing with the plaintiffs, they are already parties to the suit in posse, and will be in fact, at their option, after decree.
    II. This action is commenced upon the notion of an equality among all the acceptance creditors, touching the fund in question, and is instituted to prevent “ selfish ” creditors, by future proceedings at law, acquiring liens which equity could not disregard. (2 Paige, 567; 3 Id., 517; 34 Barb., 553.) To compel the plaintiff in such a suit as this to litigate with the petitioners their conflicting-claims against the defendants, would be, in effect: 1st. To vex the plaintiffs unnecessarily with a litigation in which co-defendants will be settling among themselves a controversy foreign to the purposes of the suit; and, 2d. To wrest this action from the equitable designs for which it was instituted.
    III. The petitioners have elected to pursue an independent remedy, and there is, therefore, neither necessity nor propriety to authorize their being made parties to this action.
    IV. If the petitioners seek a preference over the plaintiffs, they may make the Receiver a party to their other actions.
    V. The petitioners’ affidavits fail to show they have acquired any legal lien by regular attachments. (Brownell v. Carnley, 3 Duer, 9.)
    VI. There is no authority by law to make the petitioners parties to this suit upou their own motion. They have no standing in Court.
    1. This privilege given to strangers (by section 122 of the Code) is limited, by the terms of the statute, to actions of ejectment and replevin. (Judd v. Young, 7 How., 79; 9 Id., 508.)
    2. The other parts of the statute (section 122) relate to the power of Courts when causes are on trial, and it appears to the Court that it cannot “ determine the controversy between the parties before it,” “ without prejudice to, or by saving the rights of others,” if any. (Tallman v. Hollister, 9 How. Pr., 508.)
    3. In this case, when the cause is brought to trial, “ a complete determination of the controversy can be had without the presence of other parties.”
   By the Court—Bosworth, Ch. J.

The defendants do not complain that there is a defect of parties; but the application that other persons be made parties defendants comes from strangers to the action, viz., Blake Brothers & Co., and the Bank of Mutual Redemption, the present appellants.

They do not ask to be made parties defendants on the ground that their interests are like those of the plaintiffs, and to the end that it is important that they may be in a position to see that they are properly protected; but they ask to be made parties to the end that they may litigate the plaintiffs’ right to maintain any action, and may also establish their own claim to be paid out of the property in question, to the exclusion of all creditors standing in the position occupied by the plaintiffs.

The objection for want of parties must, as the general rule, proceed from the defendant. The plaintiff cannot, as the general rule, take an objection for want of parties, against the will of the defendant. (Innes v. Jackson, and Jackson v. Innes, 16 Ves., 362.) There are exceptions to the rule, and there are cases where the defect is so palpable and serious, that the Court may order a cause to stand over, that other persons may be made parties.

If it be conceded that the present is a case in which the Court might direct the appellants to be brought in as defendants, it must also be admitted that an appropriate remedy is a suit by the appellants against the present defendants, and the Receiver, as such. Whether it would be expedient to also make the present plaintiffs defendants in such an action need not be considered. The appellants, the Bank of Mutual Redemption, resorted to such a remedy, and made defendants all the persons above suggested, except the plaintiffs in this action.

In that suit all the relief can be granted, and all the questions settled, that could be granted or settled if they were defendants in this action.

It is inferable, from the proceedings had, that that suit was instituted after the orders of March the 29th, 1862, were made, or that in a suit then pending, Haggerty, as Receiver, and Blake Brothers & Co., have been made defendants.

If it had appeared, in answer to the applications resulting in those orders, that such a suit, with such parties, was then pending, that fact would have justified a denial of the applications, for it would then have appeared that the applicants had decided to proceed by action, instead of availing themselves of their remedy as interveners in this action; and clearly, they were not entitled to both remedies, when they could have obtained complete justice in the action brought by them.

It could not be important to the appellants, (if they had, when these applications were made, a suit pending, brought and adapted to securing all the relief to which they were entitled,), that they should be permitted to intervene in this suit, and raise and litigate in it the same questions.

If that suit is yet undecided, it must be presumed that if these appellants have established their lien upon the fund, a judgment will be rendered which will enable them to enforce it.

If it has been decided, and decided adversely to their claims, there is no reason why they should be allowed to intervene, and litigate the same matters anew in this action.

If the present plaintiffs were defendants in that action, a judgment in it, on the merits, in favor-of the appellants, would conclude the present plaintiffs, and a judgment dismissing the complaint in that action, would conclude the present appellants.

The appellants have not moved their appeals from the orders of March 29, 1862, until after a suit brought by them, in accordance with the practice declared in Tallman v. Hollister, (9 How. Pr., 508,) has been tried, (and perhaps decided,) nor until the present action has been prosecuted to a decision. Over eight months have intervened since those orders were made, and before the appeals from them were argued.

The appellants were not entitled to an order requiring the plaintiffs to make them parties, as a matter of strict right.

The Court, in the exercise of a sound discretion, might deny the application, and leave them to their remedy bjl action. (Creagh v. Nugent, Mos., 354; Ball v. Tunnard, 6 Mod., 170; Harrison v. Morton, 4 Hen. & Munf., 483.) With the discretion of the Court thus exercised, the Court should not interfere on an appeal not brought to argument, until after such a remedy has been taken, and the action brought has been tried on its merits.

The orders of the 29th of March, 1862, should be affirmed.

The motion resulting in the order last made, was not presented to the Court, until after the appellants’ action had been tried, (if, not decided.)

After bringing an action to establish their claims, and trying it on the merits, they must abide by the judgment rendered, or that may be rendered in it, or by the results of a review of it on appeal.

If they have failed, after a trial on the merits, they, presumptively, have no interest in the subject of the present action, beyond that which is protected by the judgment or order'that has been entered in it.

The order of the 8th of November, 1862, should also be affirmed.


source: Caselaw Access Project

author: Bosworth, Ch. J. Robertson, J.

license: Public Domain

text:
    Samuel P. Phelps, Plaintiff and Appellant, v. Sylvanus Ward et al., Defendants and Respondents.
    1. An order, made by a Judge,- after the commencement of the trial of a cause before him without a Jury, and before his final decision thereof, that the cause stand oyer, and that further evidence may be offered upon points designated, is not re viewable upon an appeal taken from the order before the final decision of the cause, and before any evidence has been received under the order.
    2. The proper mode of reviewing such order is to except to evidence offered under it, and to appeal from the judgment, or to move to set aside the decision, as in the case of a trial by Jury.
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Heard, December 20;
    decided, December 27, 1862.
    Appeal from an order, made by Mr. Justice White upon the trial of this cause before him without a Jury, that the cause stand over for further proofs.
    The action was brought by the plaintiff against Sylvanus Ward, executor, and the Mastérson, Smith & Sinclair Stone Dressing Company, &c., as defendants.
    The recitals in the order now appealed from, import that, prior to its date, this action had been brought to trial before the Court, without a Jury, on the pleadings and proof's, and all parties had been heard, but it does not state when the action was brought to trial. It then declares that “now, at the suggestion of the Court, and on motion of H. A. Cram, of counsel for” one of the defendants, it is “ ordered that the proofs in this cause do stand over to the 20th of November, 1862, at 11 o’clock” A. M., &c., “to the end that any of the parties to this action may examine witnesses and submit further proof on the following questions,” (specifying them,) “ and to the end, further, after hearing any testimony that may be presented on those points, such judgment may be rendered in this action as may be just.”
    There is annexed to the notice of appeal and a copy of the said order, that which purports to be a copy of “extract of minutes,” made by the Clerk on the trial, of proceedings then had, which consists of a statement of the day on which the trial was commenced, viz,, February 6, 1861; of the name of the Judge holding the Court; the names of the counsel in the cause; of the witnesses examined thereon ; that counsel were heard for the respective parties, and concludes, ‘ ‘ decision reserved.” There is also annexed what purports to be a copy of two paper writings, signed by said Judge, one dated June, 24, 1862, and the other, November 7, 1862, containing “suggestions to counsel,” as to submitting further proof.
    The respondents’ counsel objected to the Court’s looking at the papers annexed to the notice of appeal and copy order, insisting that it in no way appeared that said order was granted wholly or in part on such papers.
    No other papers were handed to the Court on the argument of the appeal.
    Wm. Allen Butler and Edwards Pierrepont, for plaintiff, appellant.
    H. A. Cram, for defendants, respondents.
   Bosworth, Ch. J.

It was stated on the argument of this appeal, by the counsel of both parties, that this action was brought to trial iu February, 1861; but that fact does not appear from any recitals on the order appealed from, nor from any papers handed up on the appeal, except that designated as “extract of minutes.”

The Judge, in making the order appealed from, since it appears from recitals in it to have been made on his suggestion, must be presumed to have been moved thereto by his views of what was due to a just administration of the law, formed upon a full and careful examination of the pleadings, and of the evidence given on the trial before him. Eeither the pleadings nor any part of the evidence have been laid before us; nor do the papers before us furnish any information as to the nature of the action, or of the defense, or as to the evidence given,” or other proceedings had at the trial. •

If, therefore, it is a possible thing that, in any action triable before the Court without a Jury, the Judge may, after the evidence, which either party chose to offer, has been received, and the cause summed up and submitted, and the Court had adjourned for the term, open the proofs and receive further evidence on any point, at a subsequent term held by him, then we cannot say, from the papers before us, that he has acted contrary to law in this case, or exercised his discretion in a manner prejudicial to the rights of either party, even if he should receive proofs upon the points specified in the order under consideration.

But we think that the order in question is not reviewable upon appeal in this stage of the action. FTo evidence appears to have been taken under it, and it may be that none will be given. If any should be offered, the party opposed to its reception can object to it, on the ground that the cause has reached a stage that it is out of the power of the Judge to receive further evidence, and if he receives it, his decision can be excepted to, and reversed on an appeal from the judgment.

The cause is undecided, and this is an attempt to review the decision of the Judge, made after the commencement of the trial and prior to his final decision of it that he will permit further evidence to he given on points which he specifies.

The Oode does not prescribe any mode of reviewing a decision of a Oourt trying a cause without a Jury, whether it be made during the progress of the trial, or forms part of his final decision, except upon a case or exceptions in connection with an appeal from the judgment entered on the final decision. (Code, §§ 268, 348.) Lawrence et al. v. The Farmers’ Loan and Trust Co., (15 How., Pr., 57,) sustains the proposition last stated.

We find no more warrant in the Oode for reviewing by an appeal taken after the trial has commenced, and before judgment, a decision admitting evidence, on the objection to it that the Oourt had no rightful authority to admit the. evidence because the trial w:as ended, (in the view of the party objecting,) than for reviewing a decision admitting evidence while the trial was evidently in progress, on the objection that by established rules of law, it was incompetent and inadmissible.

The decision now sought to be reviewed (although evidenced by an order in the action) relates to the trial of the action before the Judge before whom the trial was commenced, and to the reception of evidence to be considered in determining the issues to be decided, and is, therefore, a decision during the trial, as to admitting evidence. As this can only be reviewed, if evidence shall be received against the objection and exception of either party, on an appeal from the judgment, the appeal should be dismissed, with $10 costs, instead of the order appealed from being affirmed.

The Oourt does not express any opinion upon the propriety or legality of the decision included in the order.

The appeal should be dismissed.

Robertson, J.

The supposed order appealed from is made up of the offer of an opportunity to the parties in this action to produce further testimony in regard to the issues therein, and an implied self-imposed determination of the Justice before whom, the trial of such issues had thus far been had, not to decide such issues until such opportunity is afforded; neither of which make it a subject of appeal. It can hardly be said to be even an order. It neither adjudicates any rights nor issues any mandate to any person. The mere entry on the records of the Court of an intention of a Judge to receive further evidence, whether properly or improperly, of his invitation to any party to give it, can hardly be "said to be an order. And the question whether the trial is or is not over, will not alter that of the appealability of such a determination. Because in neither case is any injury inflicted, even by taking the testimony, unless it be used as the foundation of the ultimate decision.

A similar order or determination on a trial, where the testimony would be improper, would amount to nothing, and be no subject of review unless the testimony was received and laid before the tribunal who is to pass upon it. Ho exception could be taken to the mere resolve; it would only be to the reception.of the testimony. And no trial can be broken into fragments to have exceptions disposed of on separate appeals. (Lawrence v. Farmers' Loan and Trust Company, 15 How. Pr., 57.)

If, however, the trial is ended, and the supposed order is a mere determination of the presiding Judge to listen to additional statements under oath after the trial is over, no harm can accrue until the statements are listened to, and the judgment based on or biased by them. There is no physical impossibility in a Judge listening to extra-judicial statements, whether presiding in a Court or not. The remedy for any injury to the party prejudiced thereby is by motion to set aside the decision as in the case of a Jury. As a Judge is not so rigidly restricted as to time as a Jury, it is possible a thousand occurrences may influence his mind between the hearing and decision of a cause. The law trusts that his experience, learning and honesty will enable him to reject the influence. But the door once opened to applications, like that implied in this appeal, to prevent the Judge, in advance, from hearing the testimony, might be equally extended to control all his movements. Hutil it is shown that the testimony taken has improperly entered into the decision, the action of the Court cannot be controlled, although it may have declared1 23 it in the form of an order on the records of the Court.

That this is not an isolated order, is plain from the fact that it is only binding on the Judge who made it. The Court exists independently of the Justices holding its terms. Should the learned Judge before whom this case was tried resign, this order, by itself, would be vain and nugatory.

It is not necessary now to pass upon the question whether the lapse of twenty days since the submission has deprived the Judge hearing the trial of any right to hear additional testimony, or whether the lapse of that time has made a mistrial, or the parties complaining of this supposed order have any other remedy. It is enough that it does not affect the merits or any substantial right.

I concur in the judgment dismissing the appeal, with costs.

Appeal dismissed, with ten dollars costs.


author: By the Court—Bosworth, Ch. J. Robertson, J.

text:
    Antonio M. Mora et al., Plaintiffs and Appellants, v. The Great Western Insurance Company, Defendants and Respondents.
    1. Where a cause is at issue on issues of fact, and is regularly noticed for trial and placed on the calendar, and, when reached in its order, the complaint is dismissed on the failure of the plaintiff to appear, there has been a trial of the action, within the meaning of section 309 of the Code of Procedure, which authorizes the making of “ a further allowance,” after trial, in certain cases, in addition to costs.
    2. On appeal from an order granting an allowance in addition to costs,vthe Court will not review the discretion of the Judge in respect to the amount granted.
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Heard, December 27, 1862;
    decided, January 24, 1863.

      Appeal from an order granting an allowance in addition to the taxable costs.
    This was an action brought on a policy of insurance. After various proceedings the defendants answered an amended complaint which had been served by the plaintiffs, and the cause was placed upon the calendar for trial - of the issues of fact thereby raised. Immediately after the cause was at issue, certain witnesses who were likely to leave the State were examined els lene esse on the part of the defendants. The cause was put over from time to time and other witnesses were examined de lene esse, and a commission was also issued, at the instance of-the plaintiffs, to take the testimony of witnesses abroad. After numerous postponements the cause was brought on for. trial and the complaint dismissed, with costs, the plaintiffs not appearing.
    The defendants, on affidavits setting forth the proceedings and stating that the cause was a peculiarly difficult one, moved for an extra allowance in addition to the costs. The Judge before whom the motion was made, granted it, fixing the allowance at five per cent upon the amount claimed in the summons. From the order entered thereon the plaintiffs now appealed.

      F. H. Dykers, for plaintiffs, appellants.
    J. H. Choate, for defendants, respondents.
   By the Court—Bosworth, Ch. J.

The Code declares that “A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.” (§ 252, [207.]) Though it has thus defined the word trial, it has not defined what is meant by the words,. “ the judicial examination of the issues between the parties,” otherwise than by the nature, force and effect of its provisions for a final disposition of such issues.

They probably include the action of both Court and Jury, in the cases where a verdict is rendered, and only the action of the Court or of Referees, when disposed of by the Court without a jury, or by Referees on a reference. They do not necessarily require that the Court should hear the pleadings read, and that evidence should be given if the issues are those of fact, or an argument made if they are issues of law. On a demurrer to a complaint or auswer being regularly noticed for trial and placed on the calendar, where judgment is given for the party demurring, on the failure of the opposite party to appear,- the Court does not, ih fact, generally do more than hear the notice of trial read and affidavit of service. Tet the Court pronounces judgment, and in intendment of law makes all the examination necessary to enable it to decide correctly.

So, where issues of fact are noticed for trial, and the cause is placed on the calendar, and when it is reached and called in its order in open Court, the defendant appears and the plaintiff does not, and the defendant asks for a dismissal of the complaint, the Court is supposed to look into the pleadings sufficiently to ascertain if that be such a disposition “ as the case may require,” and if it dismisses the complaint, decides that it is; and that decision (if no motion be made to set it aside) is a final determination of the issues in that action.

In one case as-well as in the other, final judgment absolute, follows the decision. In both cases the cause is disposed of and decided by the action of the Court, at the place and in the manner provided by law for the trial of the action, and in both, the action of the Court constitutes a trial. In both, there has been a judicial, and all the actual examination of the issues between the parties, which the statute and the practice of the Courts have prescribed or require to reach jusband final results.

If the answer (as it may do) admits the cause of action stated in the complaint, and, as there stated, and sets up new matter as a defense, the Court would not dismiss the complaint but would allow the defendant to prove his defense and take a verdict. (Code, § 258, [213.])

In contemplation of law and of the Code, the Court, in ordering a dismissal of a complaint, looks into the issues, and such action is taken as the nature of the issues requires, and the disposition of the cause thus made involves “the judicial examination of the issues,” within the meaning of those words as used in § 252.

The Code, by force of all its provisions found in the two chapters, entitled “Issues and the mode of trial,” and “Trial by Jury,” declares that a cause at issue may be brought to trial in the mode they describe, and that when thus brought to trial and disposed of, it has been tried within the meaning of the word trial, as therein used. It must be remembered that the titles of the several chapters of the Code are a part of the statute. And that, although the Code defines the meaning of the word “ trial,” it also prescribes the proceedings to be had thereat, and when all of the prescribed proceedings have been had, there has been a trial. And it is only by raising, by construction, a conflict between the Code’s definition of a trial, and its «prescribed proceedings to constitute a trial, that any confusion or doubt is created.

I think there was a trial in this case, not only within the meaning of that word, as used in the Code, but according to the very forms of a trial which it has prescribed for a case like the present; and that Dodd v. Curry, (4 How. Pr., 123,) Moffatt v. Ford, (14 Barb., 577,) and Rogers v. Degen, (10 Abb. Pr., 313,) were correctly decided. (See Bailey’s Dic.: Tryal, [in law.])

There having been a trial, the discretion of the Judge in respect to the amount of the allowance is not reversible on appeal.

That it was a proper case for an allowance, I entertain no doubt.

« The order should be affirmed.

Robertson, J.

The only question raised on this appeal, of any moment, is, what is intended by the expression, “ where a trial has been had," in the last clause of the 309th section of the Code. It is claimed that the meaning of the term “ trial,” as used therein, is circumscribed by the definition given of it in section 252; it being substantially conceded that if it is not, the ordinary signification of the word will not sustain the plaintiffs’ position.

It is to be observed, in the first place, however, that while the fifteenth title of the Code, from section 462 to 467, inclusive, declares that certain words, when used in the Code, are to be understood in a certain sense, yet the words defined in section 252, and other sections, (§§ 1-5, 245-248,) are not declared to be used throughout the act in the sense prescribed. It would seem, therefore, that the framers of the Code, in making such distinction, intended that a general definition, without prescribing its use, was not intended to control the meaning of the word throughout the whole statute, where, by possibility, they might have used it in another sense.

But, assuming that the definition of a trial in section 252 controls the meaning of the word in the clause under consideration, it remains to be seen whether, after issue joined, or rather issues made, between- the parties, and a notice given of the trial of the same, a judgment rendered by the Court, dismissing the complaint, is the result of a judicial examination of such issues; and here we stumble at the threshold, since the meaning of the word “judicial,” as there employed, may form a subject of controversy, as it admits of various interpretations. It is defined as “relat-? ing to, practiced in, proceeding from, or issued by a Court of justice, emanating from a Judge, juridical, (Worcester), and “juridical” is defined as “relating to the dispensation of justice.” (Id.) In such a wide range of meaning, limited only by its pertaining to a Court of justice, there is nothing greatly to narrow or distinguish the character of the examination intended, unless we take “judicial” to designate something done in a Court, or by a Judge, as distinguished from clerical acts. In section 245, a judgment is defined to be the final determination of the rights of the parties. The- next section (246) provides, in its first subdivision, that the Clerk upon mere proof of the service of the summens, shall, in certain actions, “enter judgment” for the amount claimed in such summons, or, if the complaint be not sworn to, in certain other actions, “assess” the damages thereon, and in still other cases, “ascertain” the amount due by proof. The second subdivision of that section provides that the plaintiff may apply to the Court for the relief demanded by him; and the Court may take certain means of ascertaining damages by a reference to a Jury; and the notice which is to be given to a party appearing is designated as being “ of the time and place of application to the Court for the relief demanded,” and not of a trial. The third subdivision of the same section provides for judgment in case of publication. The next section, and the last of that chapter, provides for judgment upon a frivolous demurrer, answer, or reply, to be granted by a Judge either in or out of Court. The application under that section has been held not to be a trial, but a mere motion, (Roberts v. Clark, 10 How. Pr., 451; Marquisee v. Brigham, 12 Id., 399,) and the proceedings thereupon are to be the same as if the defective pleading had not been served. (Salters v. Kip, 2 Abb. Pr., 382 ; S. C., 12 How. Pr., 342.) In other words, the Court does not, in such case, determine the issue, but merely that no proper issue has been raised; as on a motion to strike out a sham defense, it determines that the issue raised is so palpably unsupported by evidence as not to deserve a trial. (The People v. McCumber, 18 N. Y. R., 315.)

The chapter containing the provisions, just referred to, for giving judgment, is headed “ Judgment upon failure to answer,” &c., and is immediately followed by the chapter containing the definition of a “trial,” which is entitled “Issues and the mode of trial.” I think it therefore very clear the authors of the Code employed the term “judicial” to distiuguish judgments by Courts from the mere “ clerical ” acts or inquests provided for in the previous chapter, (I,) on which judgments were to be entered. This being so, the word “ examination” is not very difficult to be understood or explained. It is clearly not as extensive as “investigation,” and certainly not as “ litigation.” It does not imply a laborious or contested inquiry. In the absence of either party, where an issue has been joined, it is the duty of the Court to “ examine ” what it is, in order to give the proper judgment. Without counsel or protector, the Court becomes the guardian of the rights of the absent or unprotected, to see that no more is decreed against them than the claim and issue warrant. Indeed, there is much more room for confining the meaning of “ judicial examination” to such an inspection and scrutiny of what the issues are, than enlarging it to every imaginable legal argument or testimony. Worcester, in contrasting “examination” with its synonyms, says it is “ a general term,” and “ is made in order to form a judgment.” He adds, “an investigation is a minute inquiry; a scrutiny, a strict examination.” The Code does not declare how long, strict or minute the examination is to be in order to become a trial; it is enough that there is an inquiry of some kind.”

It is admitted that the allowance provided for in the section in question is not for services on the trial, except so far as they compose part of the general labor of the cause. It is enough that the trial is had. A case, however, may be substantially tried before either party applies for judgment on the issue. Testimony obtained in commission or conditional examinations may settle the controversy beyond question, so as to render further contest useless and discreditable. Did the Code intend that the preparation to elicit, and the labor, loss of time, and expense of eliciting such overwhelming evidence before going into Court should not be compensated for; although, if obtained in Court, .it might be ? This Court has settled that the abandonment of his case by a plaintiff, after testimony taken, would not enable him to escape indemnifying the defendant for his expenses. (Allaire v. Lee, 4 Duer, 609.) Fo such unfair result as to deprive him of like indemnity should be obtained by forcing into the word “examination” a meaning it does not naturally bear.

“ Issues ” are said, by the Code, (§ 248,) “ to arise when a fact or conclusion of law is maintained by the one party and controverted by the other.” In other words,, the controversion constitutes the issue, and an examination of it strictly is an inquiry into its nature. Substituting, therefore, according to the foregoing views, the definition for the words defined, the definition of a trial under consideration would expand into “ an inquiry by a Court into what question arises upon the pleadings, by the mainten anee of a fact or conclusion of law by one party and its controversion by the opposing party.” Not a word is said of testimony or discussion. They may undoubtedly, if introduced, be used by the Court in its inquiry, if it thinks proper, but they are not indispensable to rendering such inquiry a trial within the definition.

It is very plain, that if the plaintiffs’ view be correct the defendants are not entitled to any trial fee, under the 4th subdivision of section 307 of the Code. And yet the failure, after an attempt, to dispose of the issues, has repeatedly been held not to bar the successful party of his right to it. (Ellsworth v. Gooding, 8 How. Pr., 4; Wiggins v. Arkenbergh, 4 Sandf., 688; Dewey v. Stuart, 6 How. Pr., 465.) And the same is held, too, even where a default has been taken for failure to appear. (Dodd v. Curry, 4 How. Pr., 123; Shannon v. Brower, 2 Abbotts’ Pr., 377.)

An unanswerable objection, however, to the construction now contended for, is, that if the proceeding taken to procure a judgment dismissing the complaint be not a trial, it is nothing. It is not a motion,—that is defined to be an application for an order, (Code, § 401,) which again is defined to be “ every direction of a Court or Judge, * * “in writing, not included in a judgment.” Notices of motion are required (§ 402) to be only eight days before the time appointed for the hearing; notices of trial are to be fourteen days before the Court, (§ 256,) and in the same section is added, “ the action, * * when called, may be brought to trial by the party giving the notice.” A succeeding section (§ 258) provides that the party so giving notice may “ bring the issue to trial, and in the absence “ of the adverse party * * proceed with his case, and “ take a dismissal of the complaint, or a verdict or judg- “ ment,” as it may require. The dismissal of a complaint is clearly not an order in such case : it is part of the judgment. The application for it is, therefore, not a motion; no notice of it, as such, is required to be given. No costs are given as,on a motion. Clerks’ fees are due as on a trial, (§ 312,) because the trial has been brought on. It is not very easy to see how a trial can properly be said to be “ brought on,” if no part of a trial is gone through with ; but it is entirely abandoned, and something else is done, which has no name in the Code, and is neither a motion nor a trial, and certainly not a provisional remedy.

Eor these reasons I think the order appealed from should be affirmed, with costs.