Smith v. Hart , 11 How. Pr. 203 ( 1855 )

Bockes, Justice.

By the court

It is obvious, that the appeal in this case is not authorized by chapter 3 of the Code of Procedure, entitled, “ Appeals to the Supreme Court from an Inferior Court.” That chapter provides only for appeals “from the judgment rendered by a county court, or by the mayor’s court, or the recorder’s court of cities.” (See Code, §§ 344, 345, 346, 347.)

This is an appeal from an order, not from a judgment, within the meaning of § 344. In granting the order appealed from, the county judge acted as an officer, not as a court. His authority to act as an officer, as distinguished from proceedings in court, is clearly recognized by law. (See Judiciary Act, 1847, § 29, ch. 280; also chap. 470, § 27, Sess. Laws of 1847; Code, §§ 29, 30, 31.)

The appeal in this case must be upheld—if, indeed, it can be—under § 349 or 403 of the Code.

Can any appeal, under § 349, be taken to this court from an order made by a 'county judge, pursuant to § 292, in a cause in the county court 1

Section 349 provides, that an appeal may be taken from an order made by a county judge u in any stage of the action, including proceedings supplementary to the execution,” in the five cases therein specified.

The right to appeal in this case, as it regards 'this action, depends on the construction to be given to the language above quoted. If the action alluded to in this section ‘contemplates an action in the supreme court only, then the appeal, being from an order in a case in the county court, is unauthorized under \ 349.

Section 348 provides for appeals from judgments in actions in the supreme court, entered upon the report of a referee, or upon the direction of a single judge of the same Court. Of course, this section contemplates appeals in actions in the supreme court only.

Appeals from judgments being thus provided for, § 349 was introduced to secure relief against improvident and erroneous orders in every stage of the action. If this language shall be deemed to apply to actions in the county court, then appeals are to be allowed from every interlocutory order in the progress of such cause, falling within either of the five cases specified by § 349, and this, too, before final judgment in the count) court. Such a construction would require the supreme couri to control the practice and proceedings in actions in the count) court, the same in all respects as if in its own court. But it i¡ obvious that § 349 follows up the subject considered, and parti) covered by § 348. That section having provided for appeal: from judgments, the next provides for appeals from orders; tin first by its language being confined to actions in the supremi court, and the second pointing directly to the same class o cases. The action, therefore, alluded to in § 349 contemplate an action in the supreme court only.

Nor does the section receive any additional scope from th words, “ including proceedings supplementary to the exect tion,” as it regards the question under consideration. Lest th words, “ in any stage of the action,” should be deemed insufficient to embrace orders after judgment, which is sometimes regarded as determining the action, the phrase “ including proceedings supplementary to execution ” were added.

I am brought to the conclusion, therefore, that this appeal, being from an order in a proceeding in an action in the county court, is not authorized by § 349 of the Code.

Does the last paragraph of § 403 give the right to appeal in a case like this under consideration %

That section, too, must be deemed to have reference to actions in the supreme court only. Clearly, the first clause is confined to such actions, and the last clause is necessarily limited in like manner, because it points directly to those order's which it would be appropriate for a judge of the supreme court to grant; and a judge of the supreme court has no jurisdiction to allow orders in actions or proceedings in the county court. The remark at the close of the opinion in Conway agt. Hitchins, (9 Barb. 378, 387,) was not called for, and was evidently made without reflection. The appeal was unauthorized by § 403.

There is another good reason why the appeal should be dismissed. The papers show conclusively, that the subject matter of the appeal has been settled by the parties. After the order was granted by the county judge, the parties compromised, and Hart paid, and Smith received, $35 in full satisfaction of the claim and costs. The money was not paid upon the order by coercion, but by compromise.

The appeal is therefore a mere formality, without substance, and should not occupy the attention of the court or incumber its records.

The motion to dismiss the appeal 'must be granted.