Citation Numbers: 17 Abb. Pr. 405
Judges: Clerke, Leonard, Sutherland
Filed Date: 2/15/1864
Status: Precedential
Modified Date: 1/12/2023
I.—Appeal from an order denying a motion to set aside an order extending time to answer for irregularity.
This action was brought by John P. Culver against David M. Hollister and another, upon an undertaking given by defendants as sureties on an appeal: the appeal had been determined in favor of the respondent in the action in which the undertaking was given. The answer set up that the affirmance had been obtained by fraud and collusion between the parties. The plaintiff moved to require the answer to be made more definite and certain, by specifying the acts of collusion and fraud relied upon. The motion was granted, and ten days was allowed to enable the defendant to. amend his answer in these respects. The defendant, however, appealed from this order, and, after his time to answer had expired, obtained from a justice of the court at chambers an order ex parte, extending the time to amend the answer until ten days after the determination
The order which is sought to be set aside, is not an ordinary order staying proceedings until an appeal from an order shall be decided. It merely suspends the operation of the order appealed from, until the decision of the general term. Such an order the court may, if it think fit, make without requiring notice to the other party. Even on an appeal from a judgment to the general term,- the court may grant a stay without notice. (Steam Nav. Co. a. Weed, 8 How. Pr., 49.) To be sure, the judge, in that case, said that a judge out of court could not do this, but I think he could do it in regard to an order. At all events, as there is no distinction in this district between an order granted at chambers and an order granted at special term, I shall deem the order sought to be set aside in this case, as an order of the court; and, if necessary, the form of the order may be amended, so as to make .it appear on its face as an order of the court.
Motion denied, without costs.
The plaintiff appealed.
This appeal is from an order denying a motion to vacate an exparte order extending the time to answer, after the appeal was taken, until ten days after the hearing and decision of an appeal from an order directing the defendant’s answer herein to be made more definite and certain.
Conceding that the order made, ex parte, extending the time to answer after a decision at special term directing an answer to be made more definite and certain in ten days, and on expiration of that period, was irregular, it does not follow that the order denying the motion at a special term, made on notice, when both parties were before the court, to vacate the ex-parte order, was not properly made.
The order denying the plaintiff’s motion amounted to a stay of proceedings merely till the appeal was heard. This motion was heard and decided at special term, when both parties were before the court on notice; and the judge had jurisdiction to grant a stay of proceedings, which would have the same effect only as the order appealed from. (9 Abbotts'; Pr., 419.) If the order directing the answer to be made more definite and certain should be affirmed, the general term could, and on request would, regulate the further time, if any, which should be granted to the defendant within which to comply with the terms of the order. If the order should be reversed, then no further time to answer would be required, as the answer already served would put the cause at issue.
I have looked into the answer referred to, and do not consider it clear, by any means, that it is insufficient, or requires to be made more definite.
I think the order appealed from here should be modified, so as to direct a stay of proceedings, on the part of the plaintiff,
Clerke, J., concurred.
The order served on the plaintiff’s attorneys on the 27th of October, extending time to serve amended answer ten days, was, I think, irregular, and would have been without force, even had it been served before the expiration of the time fixed by the original order for serving the amended answer. I infer from the papers that such order, extending the time to serve an amended answer, was made expcvrte, and out of court. The original order, giving the defendant ten days to serve an amended answer, was a part of the decision or order made at special term, on the motion of the plaintiff, that the defendant make his answer more definite and certain; and I do not think that the time thus fixed by the order, as part of the decision of the justice who heard, the motion on notice, could regularlybe extended by another justice, expcvrte and out of court.
But perhaps the question of the regularity of the order served on the 27th of October, extending the time to serve an amended answer, is not presented by this appeal. The appeal is from the order of the 19th of November, denying the plaintiff’s motion to vacate the exparte order of the 10th of November, giving the defendant until ten days after the decision of the general term, on the appeal of the defendant from the original order of the 14th of October, requiring him to make his answer more definite and certain as to certain particulars specified in it, and giving him ten days within which to serve the amended answer.
Perhaps, then, the only question in the case is as to the regularity of the order of the 10th of November.
The case of Wood a. Kimball (9 Abhotts’ Pr., 419; S. C., 18 How. Pr., 163), and the cases there cited, clearly show that the order of the 10th of November was irregular, and should have been set aside.
The order having been made ex parte, and out of court, I doubt whether even the justice that made it could, in deciding the motion made before him to vacate it, deem it to be the
I think the order appealed from should be reversed, with $10 costs, and that the order of the 10th of November should be vacated.
Order affirmed.
II.—Appeal from an order requiring the answer to be made more definite and certain.
The facts are already above stated: both appeals came on for hearing at the same term.
If the defendant’s answer was defective in not setting out the facts showing the collusion and fraud alleged in the answer, I am of the opinion that the plaintiff’s remedy was by demurrer, not by motion that the answer be made more definite and certain.
The allegation of collusion and fraud in the answer was certain and definite. It can hardly be said that the amendment, required by the order appealed from, tended to make the charge or allegation of collusion and fraud more definite or certain, by requiring the defendant to state the facts generally, showing the fraud or collusion.
I do not mean to intimate an opinion that the answer would be held bad on demurrer, because it does not state the facts
In my opinion, the order should be reversed, with $10 costs.
Leonard and Clerke, JJ., concurred.