Shearman v. Justice

Welles, Justice.

Upon a careful examination and consideration of the affidavits read and submitted on this motion, I am constrained to conclude that the words “ with costs to the defendant Hughes,” at the conclusion of Judge Humphrey’s report of the date of March 16th, 1860, were not inserted in the report when the same was first made and delivered to the counsel of the defendant Hughes, nor until one or more days afterwards, when those words were inserted at the instance of the counsel of Hughes, -without notice to the attorney or counsel of the defendant Henry Justice.

Mr. Bishop, one of the attorneys and counsel for defendant Henry Justice, states, among other things, in his affidavit sworn to the 6th day of June, 1860, and read on this motion, that Mr. Humphrey, the referee, informed him that he made, signed and delivered his decision to Mr. Newton, the counsel for Hughes, without taking the question of costs into consideration, and that one or two or three days afterwards, Mr. Newton came back and requested him to insert costs, and without reflecting whether it was a case in which he had power to pass upon that question, he inserted that part of his decision, and re-delivered the same to Mr. Newton. Mr. Wilcox, the partner of Mr. Bishop, and also one of the attorneys for Henry Justice, states, among other things, in his affidavit read on this motion, that on the 9th day of June, 1860, and soon after he had knowledge of the report of Mr. Humphrey, as finally made and filed, and as it now appears in the judgment roll, he called upon Mr. Humphrey, and told him that the attorneys for defendant Henry Justice were going to make a motion in the cause, having reference to the said costs, and that he had called for the purpose of getting the affidavit of Mr. Humphrey, to be used on said motion, of the facts in relation to the making and the delivery of his report to Mr. Newton, and as to the alteration of the report after the same had been made and delivered; that Mr. Humphrey in reply said, in substance, that he would rather not make an affidavit in the case ; that he had told Mr. Bishop the facts in the case, and that his affidavit of such statement would be just as good for the purposes of the motion as his, said Humphrey’s affidavit; that the other parties would not and could not contradict the facts as he had stated them to Mr. Bishop ; that if they did, he would then make an affidavit of the facts.

These, with other affidavits, were served in due time upon the attorney for the defendant Hughes, and notice given that they would be read upon this motion. The affidavit of Mr. Bishop contains the direct charge, upon information of the referee, of the improper practice with him, and that of Mr. Wilcox shows that the referee declined making the affidavit unless the facts should be denied. The moving party has therefore done all that in the nature of the case he could do, to obtain direct positive evidence of the facts in question, and enough, as I think, to call upon the other party to deny them positively and in detail. This has not been done.

I find among the papers submitted on the part of the defendant Hughes, a paper in the form of an affidavit by Mr. Newton. This paper does not appear to have been sworn to by Mr. Newton, and I ought probably for that reason to disregard it. But if it were sworn to, it would not, in my judgment, change the result. It would then only show that with these charges patent upon the moving papers, an attempt had been made to explain them, but that such attempt had signally failed. The material fact charged is, that the report of the referee was made, signed and delivered, without the last words referred to touching the costs, and that afterwards, and upon a subsequent day, the referee, at the instance of Hughes’ counsel, made the alteration or addition of the words in question. Mr. Newton does not deny this charge in his unsworn affidavit. All that he says on the subject may be true, and the charge remains intact. If the added words were in the report before the referee delivered it to Mr. Newton, it would have been quite easy for him to have so stated; but although the referee told Mr. Bishop that one or more days intervened between the delivery of the report as first made out, and the addition by the referee of the words in question, that most material circumstance is not denied.

An inspection of the original report which forms a part of the judgment roll, shows that in all probability the, words in question were added after the report was signed. If the fact as charged be true, that the report was made and signed by the referee, and delivered to Hughes’ counsel without the words referred to, on the subject of costs, and that those words were afterwards procured by the counsel for Hughes to be added by the referee, the added words was an irregular proceeding, and '-mnot be sustained by this court. (Ayrault agt. Sackett, ~ Pr. R., 507.) When the referee first delivered his report duly signed, his power over the subject matter was exhausted.

I forbear expressing any opinion upon any of the other points raised upon the argument of the motion, as the views above expressed are sufficient for its final disposition.

An order must be entered, that the entry upon the judgment roll, made by the clerk on the 4th day of December, 1860, adjudging costs to the defendant Hughes against the defendant Henry Justice, and awarding execution therefor, and so much of the order found in the judgment roll which appears to have been filed March 26, 1860, as orders the defendant Henry Justice to pay costs to the defendant Hughes, and that in case the mortgaged premises be sold, the costs of the defendant Hughes be paid out of the proceeds of sale, be set aside and expunged from the judgment roll; The added words in question, viz : “ with costs to defendant Hughes,” must also be stricken from the report; the bill of costs of the defendant Hughes, with the clerk’s certificate of adjustment, must be detached from the judgment roll, and the defendant Hughes must pay the attorneys of the defendant Henry Justice $10 costs of this motion.