President of the Bank of Poughkeepsie v. Haight ( 1847 )

Barculo, Justice.

The statute provides (2 E. S. Ill, sec. 110, 2d edition,) that “no process shall be issued on any final decree until the same shall have been enrolled.” The 97th section provides for the enrolment by enacting that “ after the expiration of thirty days from the time a final decree shall have been entered in the minutes of the court, if no appeal shall have been entered therefrom, and if no petition for a rehearing shall have been presented^ either party may have the decree enrolled. *

It is quite manifest that under these sections the presentation of a petition for a rehearing within the time specified, or before the enrolment, must stay the enrolment and prevent the issuing of execution.

The 78th rule is drawn, and is to be construed with reference to this statute, and the 20th section of the new Judiciary Act which authorizes an application to be made at a general term for the rehearing of a cause decided at a special term. That rule provides that notice of the application may be served at any time within thirty days after service of the decree. If the notice may be served at any time within the thirty days, it follows that the day for hearing may, and often must, be after the expiration of that period. The rule proceeds: “ H not applied for within that time, process may be issued to enforce the decree.”

The best construction I am able to put upon this rule and statute is this: The words “ applied for” in the latter clause of the rule are satisfied by due service of the notice of application within the required time, as mentioned in the former clause. In like manner the statute requiring the petition to be presented is satisfied by such notice of presentation. Hence it follows that the notice of application for a rehearing operates as a stay of the Plaintiffs’ proceedings, and the execution was irregularly issued.

I have arrived at this conclusion with great reluctance; for I am apprehensive of the bad effects of allowing defeated parties to stay their adversaries’ proceedings for several months by a mere notice and petition for a rehearing. In this very case, the Plaintiffs’ proceedings are stayed until next June—a period of more than eight months from the time the cause was decided. This is, however, but one of the many evils which flow from the requiring the judges to hold the general terms in every county, and compelling parties to have their causes heard in their own or an adjoining county. The motion must be granted, but under the circumstances, without costs.