Proctor v. Soulier , 82 Hun 353 ( 1894 )

MAYHAM, P. J.

Various.preliminary objections of a somewhat serious character were raised by the defendant at the return of the order to show cause, which are pressed here as grounds for a reversal of the order granting the temporary injunction and appointment of a receiver in this case, and which seem worthy of consideration.

The first objection was based upon the ground that the papers on which the order was granted did not conform to the requirements of rule 37 of the general rules of practice of this court, made under the provisions of section 780 of the Code of Civil Procedure. That section provides that notice of motion, and papers upon which it is to be made, must be served at least eight days before the time of hearing, when special provision is not made by law or by the general rules of practice for a shorter time, or the court or judge, upon affidavit showing that a shorter time is necessary, makes an order to show cause; and rule 37 provides that an order to show cause shall in no case be granted unless a special and sufficient reason for requiring a shorter notice than eight days shall be stated in the papers presented, and the party shall in his affidavit state the present condition of the action, and whether at issue, and, if not yet tried, the time appointed for holding the next trial term or circuit when the action is triable. The order to show cause in this action was dated on the 18th day of May, 1894, and by its terms was required to be served on the 19th day of the same month, and was returnable on the 23d thereof, with leave to the plaintiff to serve other affidavits within two days before the hearing. No special reason is stated in the affidavits why a shorter time than eight days was required for the hearing of the motion, nor was the condition of the action, or the next term or circuit at which it could be heard, stated in the affidavits on which that order was granted, as required by rule 37. The order to show cause takes the place of a notice of motion, and, as it would seem from the section of the Code and rule above referred to, the former cannot be substituted for the latter, except in the manner particularly pointed out and authorized therein. This objection was specifically taken by the defendant on the return of the order to show cause, and was overruled before the defendant interposed his defense upon the merits. We can hardly hold that this objection is too technical to be regarded on this appeal. It may have involved a substantial right of the defendant by affording him inadequate time and opportunity to prepare to meet the somewhat voluminous affidavits used by the plaintiff on this motion. At all events, the defendant had a right, on this summary application for an injunction and receiver, to insist upon a. substantial compliance with the Code and rules, and, if denied that right, to ask this court to enforce its rules.

It was also objected by the defendant, on the hearing of this motion, that the temporary injunction was defective in not briefly stating the ground upon which it was granted, as required by rule 13 of the general rules of practice of this court. It is true that the order to show cause is not appealed from, but it constitutes the only authority for the motion on which the order appealed from was granted, as recited in the order appealed from, and constitutes the jurisdictional basis upon which the order appealed from was granted; and, as the objection to its validity was raised on this motion, I think it must be held as directly affecting this order, as, without the order to show7 cause, there would be no notice of motion on which this order could have been made. It is insisted that the granting of the order for an injunction rests in the sound discretion of the special term, and should not be interfered with on appeal. But it is only when the judge at special term has, in accordance with the prescribed rules of law and practice, acquired jurisdiction of the parties and subject-matter, that we can exercise sucli discretion. The object of rules of court and statutory methods of practice is to prevent parties from surprise, and preserve method and order in the administration of justice; and parties and attorneys have a right to expect the courts will administer the law in accordance with the rules which they have promulgated for their guidance. On failure on the part of the courts to observe them, the rules become little less thau a delusion and a snare, by which the public may be misled, to their injury.

For these reasons, we think the order appealed from was erroneous, and should be reversed. Order reversed, wdth $10 costs and printing disbursements. All concur.