Perry v. Moore , 2 E.D. Smith 32 ( 1851 )

Ingraham, First J.

Every court should control and regulate its practice, and upon mere questions of practice, should, for the sake of uniformity in its decisions, allow a review, by the full bench, of such orders. In the same court it becomes a mere regulation of the parties not governed by any special provision of the Code, but made for the good government of the court itself and the welfare of suitors, and so long as the Code does not prohibit it, no one has a right to object.

When an appeal is taken on such an order to an appellate court, it may then be proper to inquire how far they can regulate the practice of an inferior court; but within the same court, I have no doubt of the propriety of such reviews, if the court see fit to allow them.

In the present case there is no reason to doubt the propriety of the decision appealed from. There is no fault charged upon the referee named, and the ground upon which the motion is now made was known to the defendant’s attorney before the reference commenced, and, with full knowledge of all the circumstances, he assented to the appointment of the referee. To allow him now, and for the same causes which then existed, and which were known to him prior to the reference, to succeed in changing the referee, at an expense of nearly two hundred dollars, would be doing an injustice to the parties.

There is nothing shown at all impeaching the referee; and under the circumstances, even on his account, the motion should be denied.

The appointment in the case was made by the surrogate, with the consent of all the parties. To justify his removal, I think there should be something shown not known to the parties at the time of making the appointment. The only matter of that kind suggested in this motion is, that the plaintiff’s attorney has taken an assignment of the claim to secure his costs. He was entitled at all times to the costs. He has no more interest now than he ever had in the recovery; and I cannot think that the mere assignment of the claim, for the purpose of securing his costs from a private settlement of the matter without the attorney’s consent, can so change the relations of the parties as to justify us in granting this motion at so great an additional expense.

The granting or refusing costs, on the decision of a motion, is a matter within the discretion of the judge who hears the motion, and with this part of the decision we do not interfere on appeal.

The alternative on which the motion should be granted was a privilege to -the defendant, which he was not bound to take, and which he might at present reject. He, of course, was under no necessity of appeal on that ground. He could render inoperative that part of the order without an appeal.

I have noticed the questions raised on this appeal by the respective parties, although I think it is not properly before us at this time. The appeal I consider one on a mere question of practice, not involving the merits. In such cases, I think the rule of the Common Pleas is still in force, and the appellant should have obtained the certificate of the judge allowing such an appeal to be made.

I make the suggestion here, because of late the rule has been disregarded. Its enforcement will confine these appeals within proper limits, while they can be so far allowed as may be necessary to produce uniformity in the practice of the court.

Woodruff, J.

I do not doubt the power of the court to allow the rehearing, before the full bench, of any order made by a single judge at special term; but such an allowance is not an appeal within the provisions of the Code, and is not a matter- of right, except when the order involves the merits, or falls within some of the provisions of section 349. How far it may be desirable to allow questions not embraced within that section to be submitted to the general term, it seems to me unnecessary to say. If allowed at all, it should b,e in cases of such importance and doubt that an order for such rehearing will be granted by the judge.

The present was not an appealable order under the Code, and if it' were, it ought not to be disturbed on the defendant’s appeal.

Appeal dismissed and order affirmed, with costs.