Otis v. Spencer , 8 How. Pr. 171 ( 1853 )

Welles, Justice.

I think the county judge had power to make the order staying proceedings on the judgment.

Section 401 of the Code declares that “orders made out of court without notice, may be made by any judge of the court, in any part of the state; and they may also be made by a county judge of the county where the action is triable, except to stay proceedings after verdict.” This was not the case of a verdict, but of a report of a referee and judgment thereon. Although the. word verdict, in a philological sense, embraces the idea of the finding of a referee as well as of a jury upon the question of fact submitted, yet as used in the Code, and in a legal sense generally, it is understood to be the determination of a jury, upon the matters of fact in issue in a cause, upon the evidence (Burrill's Law Dict., Verdict; Code, §260). That the meaning of the word, as used in §401, was intended to be restricted to the finding of a jury, is evident, for the reason that by the former practice, and afterwards by statute, a judge of county courts of the degree of counsellor of the Supreme Court, or a Supreme Court Commissioner, had not the power to stay proceedings on a verdict in a suit in the Supreme Court (Sess. L. of 1825. ch. 220, §4; 2 R. S. 20, § 280). The theory was, and I suppose is still, that where an action had been tried, and a verdict obtained, under the direction of a justice of- the Supreme Court or circuit judge, no functionary of a lower grade than those ought to be allowed to prevent the successful party from proceeding to obtain the effect of his verdict. Where a party wishes to review the proceedings at the trial, and to stay his adversary in the mean time, application for "such stay should be made to the justice before whom the trial was had, except under very special circumstances. But these reasons are not supposed to apply to the case of a report of a referee.

But that portion of the order of the county judge in this case, which directed what kind of an undertaking should be given by the appellant, was wholly unauthorized and inoperative. Section 348 of the Code, after giving the appeal, declares as follows: “ such an appeal, however, does not stay the proceedings, unless security be "given as upon an appeal to the court of appeals, •or unless the court or a judge thereof so order, which order may be made upon such terms as to security or otherwise, as may be just, such security not to exceed the amount required on an appeal to the court of appeals.” Here, provision is made for staying proceedings by the appeal, by an order, without security, or with different, or less security than is required where no order is made. But a county judge can not make such order, in an action in the Supreme Court. The expression, “or unless the court or a judge thereof so order,” refers to the court in which the judgment appealed from was obtained, or a judge of that court. If the county judge had proceeded on the return of this order to show cause, and had ordered the appeal to operate as a stay of proceedings, it would have been a nullity, and the plaintiffs might have disregarded it. If the appellant gives the security prescribed by § 348, the appeal operates as a stay of proceedings, without an order. If he does not give such security, the plaintiff or prevailing party may proceed to the collection of his judgment, unless the court in which it was rendered,, or a judge thereof, order the appeal to operate as a stay of proceedings.

In this case however, that part of the order in question which I am asked to vacate, was temporary, and has expired by its own limitation. It was an order to show cause merely, and nothing appears to have been done in pursuance of it, and of course does not affect the plaintiffs proceedings, or stay him in having execution of his judgment, and there is nothing, consequently, to set aside or vacate. The motion is therefore denied, but without costs.

I am asked now to make the necessary order to. stay the plaintiffs’ proceedings until the determination of the appeal. This I can not do on the papers before me. The .report of the referee, with the execeptions thereto, and the case, if one has been made, should be presented, in order that it may be ■ seen whether there is probable cause for reviewing the decision of the referee. And if there is reason for accepting one surety instead of two, as the Code requires, or otherwise dispensing with the requirements of § 348, it should be made to appear.