Low v. Cheney , 3 How. Pr. 287 ( 1848 )

Hand, Justice.

The § 362 of the code provides that “no order to stay proceedings for a longer time than ten days shall be granted by a judge out of court, except upon previous notice to the adverse party.” The term “judge” here, no doubt, includes a justice of the Supreme Court, although the expression “judge or justice” is also used in the same chapter, (§ 360.) “ Justice” is the term used in the constitution, (art. 6,) but “judge” and “justice” are used synonymously in the code. (See, among others, §§ 155, 163, 198.) By the 5th subdivision of § 2, of an “ act to facilitate the determination of existing suits in the courts of this state,” (passed April 12th, 1848,) §§ 360 to 363 of the code are applied, so far as the same are applicable to “non-enumerated motions ” in this court, in suits pending on the 1st day of July last. The § 358 of the code declares, “an application for an order is a motion.” But that section does not apply to existing suits. An application to an officer out of court for time to plead, or for an order for a bill of particulars, was not, under the former practice, considered a “motion.” A motion is an application for a rule or order of the court. (Rule 49, 1 Tidd’s Pr. 436; 1 Richardson’s Pr. 621; Lee’s Die. 939; 14 Peterdf. 354.) These applications, therefore, in suits pending on the 1st of July, are not motions. The § 358 does not apply to them, nor does § 362, except as to non-enumerated motions. The distinction between orders and non-enumerated motions, perhaps, is abolished in suits commenced under the code, but not in existing suits. Possibly, too, an order to stay proceedings for the purpose of mating a non-enumerated motion in an existing suit, can be but for ten days without notice, for those motions can now be made to a judge out of court on five days’ notice. (§§ 360, 363.)

But the powers of judges to make other chamber orders in existing suits, it is believed, are not abridged, except in some special cases. Provision is made for bills of particulars in suits commenced since the 1st of July, without an order therefor, by §135. But this section does not affect existing suits, and if no stay of proceedings for this purpose, longer than ten days can be granted, it would be inconvenient to both parties when the opposing attorneys reside at a distance from each other. An order for further time to answer, which, in effect, stays the Plaintiff’s proceedings, is provided for by § 366. But that also does not affect existing suits, which is an additional reason for the construction of § 362 here given.

It follows that the default of the Defendant was erroneously entered, and that and all subsequent proceedings on the part of the Plaintiff, must be set aside, and the Defendant has fifteen days to plead after the entry of this order. Neither party can have costs on this motion.