Fry v. Bennett

Hoffman, J. (dissenting).

—I fully concur in the denial of the motion to dismiss the appeal taken on the 25th day of Hay, 1858, from the order of the 13th day of April, 1857, denying a new trial.

But the decision on the appeal from the order of special term, made in Hay, 1858, involves the question whether the court has .any power to extend the time for taking an appeal from an order or judgment, or to give liberty to take it after the time prescribed in the Code has expired.

Upon this question I am compelled to differ from my brethren, and this is one of the few cases in which a deep-rooted opinion upon a point of great and permanent practical consequence appears to demand the expression of that dissent.

I do not consider, and I believe that it is not claimed, that the opinion expressed in Humphrey a. Chamberlain (1 Kern., 274) controls the question. The appeal there was dismissed because it was from an order not appealable. The question was not raised. Section 174 of the Code was not noticed: the 405th and 322d were alone referred to.

The reasons of my dissent are embodied in the following propositions :

First. The Code has abolished writs of error, and substituted what is termed an appeal, as the method of reviewing orders and judgments (§ 323). I think that the practice upon appeals in equity cases, rather than that upon writs of error in common law actions, is to supply the rule of decision where the Code is silent (§ 469). Either this is the doctrine, or i^is, that when the action is a common-law action, the rules upon writs of error shall control; and when it is an equity suit, those upon appeal, as formerly known, shall govern.

Second. We find one great and important principle prevailing, both as to writs of error and ajDpeals. Writs of error were, at the common-law matter of absolute right in civil cases, and could be brought at any period, however remote. Appeals by the Civil, the Ecclesiastical, the Admiralty, the law of the Court of Chancery, and that of the House of Lords, were equally of absolute right, and equally unfettered by time. Positive statutes and positive rules were necessary to restrict the exercise of this right within definite periods, or to impose conditions upon it.

*363As to writs of error, there was no limitation before the statute of Wm. III., c. 14. The preamble to that act recognizes the law “that ancient judgments were reversible at any time without restriction or limitation.” It provided a remedy by limiting them to twenty years. Our own statute of 1813 {Rev. Stats., 1813,134, § 9) reduced the period to five years. The Eevised Statutes of 1830 abridged the time to two years (2 Rev. Stats., 595, § 21). In the English act, and in our own statute of 1830, the exceptions of infancy, coverture, and some others, were contained, and provided for the period after the disability was removed. (11 Wend., 526.)

Third. In the Court of Chancery, appeals from the decree of the Master of the Bolls were to be taken within a month, by order of court of 1725. (Beames’ Orders, 334, 338.) This order fell into disuse. Appeals of this nature being more strictly rehearings, were taken after a much greater length of time. (1 Daniel, 36; 13 Ves., 456.) The rule seems to have been, that until a decree was enrolled, it was open to a rehearing. (1 Daniels' Pr., 1347, and cases.)

By the order of the 7th day of August, 1852, one of those resulting from the great statutory amendments of the practice, the subject was fully regulated, and the periods for appeals and rehearings prescribed. By the sixth section of the order, the lord-chancellor, either sitting alone, or with the lord justices, or one of them, might, whenever the peculiar circumstances of the case appeared to make it just and expedient, enlarge the periods before appointed for a rehearing, appeals, or enrolment. (Head-lam's Ch. R., Acts, &c., London, 1853.)

Fourth. Appeals to the House of Lords were regulated by a standing order of Match 24th, 1725. Ho petition of appeal was to be received after five years had expired from the signing and enrolling of the decree, and the end of fourteen days next ensuing such five years, unless the person be an infant, feme covert, non compos, imprisoned, or out of the kingdom. Then within five years after the disability should cease. (Stated at length, 2 Fowler's Exch. Pr., 246; Palmer’s Pr., House of Lords.)

An order of the House, made in 1829, reduced the period of appeals to two years; and as to the exceptions, it provided that in no case should an appeal be allowed where the excuse was *364absence merely, after five years from enrolment. (1 Daniels' Pr., 1357.) ,,

An appeal from subsequent orders, brought within five years from their date, saved an appeal from the decree brought after five years had elapsed.

Where a decree had not been enrolled, the House of Lords acted upon the equity of the statute of Wm. III., and dismissed an appeal which was brought twenty years after decree pronounced, although enrolled within five years. (Edwards a. Carroll, 5 Brio. P. C., 466; Smyth a. Clay, 6 Ib., 395, Dublin edition.)

Fifth. Appeals in spiritual causes were regulated by the famous statute of 24 Henry VIII., cap. 12, prohibiting appeals to the See of Rome. From a sentence the appeal was to be taken in fifteen days, and from an interlocutory order, within ten. (Statutes at Large, vol. 2, p. 177. See, also, Floyer's Proctor's Pr., p. 31.)

Sixth. In admiralty I need only refer to Brown’s Admiralty Practice, to the Act of Congress of 1803 (ch. 40, §§ 2 and 4), and to Wiscort a. Daneley (3 Dall., 327). The principle is found that appeals are of civil law origin, and the limitation to five years was prescribed for the tribunals of the Hnited States.

Seventh. Appeals in equity cases were regulated by the act of 1813 (1 Rev. Stats., 34, § 9), adopted into the Revised Statutes of 1830. (2 Rev. Stats., 605, §§ 78, 79.) Appeals from final decrees were to be made within two years from enrolment, subject to the same exceptions as to persons under disability as in cases of writs of error, and appeals from any other order within fift&en days.

And the regulation of appeals from a vice-chancellor to the chancellor was also made by statute. (2 Rev. Stats., 178, § 65.)

I deduce from this review two conclusions : one, that all restrictions upon the right of appeal are to be strictly construed ; another, and more,important, that any relaxation of such restrictions is to be liberally interpreted.

By the light of these principles the Code is to be • examined. We notice, first, that the whole doctrine of exceptions, by reason of a disability, is disregarded. The prescription seems peremptory for all suitors.

In the next place, as the Code stood in 1848, the provision *365was only that which we now find in section 173, with unimportant variations of language.

The new clause of 1849 added the provision which now forms section 174. In it we find the direction that the court may, in its discretion, allow an answer or reply to be made, or other aet to be done, after the time limited by this act, or by any order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, release a party from a judgment, order, or other proceeding taken against him through mistake, inadvertence, surprise, or excusable neglect.

Thus, then, a judgment may be relieved against within a year, for excusable neglect; and yet we are to hold that the power of reversing that judgment, under any circumstances whatever,, after the expiration of thirty days, exists nowhere; not even when that appeal is from one judge to other judges of the same court. With the most indulgent provisions for every other imaginable case, this important common-law inherent right is. bounded by a period very brief in duration, and by a rule most stringent in application.

It has been urged that an appeal is a new action. With respect, I regard this position as clearly indefensible. Some of my reasons are stated in Seely a. Pritchard. But if an appeal from an inferior to a superior tribunal could by possibility be so. considered, I am unable to find a shadow of plausibility of' treating a review by judges of the same court, of the decisions of one of them, as of that nature.

It is urged that the court might as well assume the power of authorizing the commencement of action after the expiration of the periods fixed in title 2 of the Code. The answer aj>pears to me to be, that section 174 cannot, without the wildest latitude of construction, be considered as applying to any act, except such as attend and can be taken in the progress of a cause after its commencement.

It has been insisted that by just reasoning such a power would extend to permit exceptions to the ruling of a judge at a trial, to be taken after the trial. The answer seems to me sufficient that the time to do that is not prescribed by the Code. It must, from the nature of things, be taken at the trial, and so section 264 declares; but this is not the prescription of a def*366inite period of days or other times, for doing an act conteihplated in section 174.

It is strongly urged that whatever was comprised in the fresh provision of 1849, it could only be treated as relating to acts proper or necessary in a cause before judgment, and that the context appeared to establish this. This, perhaps, might sanction the exercise of the power when the appeal was to be from an order merely. But it seems to me a better and more comprehensive answer may be given. The provisions as to relieving from judgments contemplates grounds of relief distinct from the case as it stands, something extraneous; not a review of tliedetermination on the case as made out in the court below.

Besides, section-408 has provided for such a case, conferring the power even upon a single judge of the court, except as to an appeal. I draw an argument from this very section that the power was left to the court in cases of appeals.

That inconveniences, and possibly evils, may result from the possession of the power in question, may not be contested. They attend every exercise of a discretionary authority lodged in a court; and yet that authority is indispensable to justice in a multitude of instances. On the other hand, little experience or little thought is needed to perceive the numerous cases in which the plainest rights will be defeated, and the grossest injustice wrought, by the rigid construction of the Code upon this question.

I observe, in conclusion, that the case is of an appeal from an order denying a motion for a new trial, and the right of a judge of the court, in court, to extend the time for taking such an appeal. It is the decision on this point that I differ from.

My reasoning would equally support the power in case of a judgment of the special term sought to be appealed from. I say nothing upon the point of an appeal from the general term to the Court of Appeals.