Lindsay v. Sherman , 5 How. Pr. 308 ( 1851 )

Hand, Justice.

Two questions arise: Was the affidavit of Shattuck sufficient? And if not, cari the proceedings he set aside in this way?

The affidavit by which they were instituted, contains every necessary allegation, except that it does not show that the person deposing to the facts, has any connection whatever with the case. He does not state that he is interested, or is agent; nor does it appear that his affidavit was made at the request of, or procured by, the judgment creditor or his attorney. On the contrary, it is shown the attorney on the record had no knowledge of the pro-ceedings. Had the judgment creditor or his attorney actually appeared in the matter, perhaps the case would have been different. The person making the affidavit, as the case stood before the judge, was simply a volunteer, stirring up a controversy between others, without the authority, or even the knowledge of the judgment creditor. . It now appears that the affidavit was made by the assignee of the judgment; but that proof, at this time can not have a retroactive effect

Then can the aggrieved party move to vacate the proceedings in this court? or must he first make that motion before the judge before whom the proceedings are pending, and if he fail, appeal? Hr must he sue out a certiorari? I think no certiorari necessary -or proper; for the proceedings are in a suit in this court. And I am inclined to think a party can not appeal from an exparte ■order, made by a judge, at chambers, to the general term (Code, § 350; Savage vs. Relyea, 3 How. Pr. R. 276). This was such an order, and the motion to set it aside is made at a special term. The usual practice formerly, was to apply to the judge or officer granting the order to vacate it, and on his refusal, to appeal to the court (2 P. & D. Pr. 50; 1 Burrell’s Pr. 350).

In Rex vs. Wilkes (4 Burr. 2569), it is true, Mr. Justice Yates said, “the validity of a judge’s order can be impeached only in two ways, either by appealing to the court to set it aside, or, if made in vacation, by applying in the next term to set aside the proceedings that have been had under it.” That appeal, however, is, in no sense, an appeal under § 350 of the Code. It is, in fact, nothing more than making a motion to set the order aside (3 Chit. G. Pr. 33. And see Lyon vs. Burtis, 4 Cow. 539). And I am inclined to the opinion, that the Code also authorizes the same practice. “An order made out of court, without notice to the adverse party, may he vacated or modified without notice, by the judge who made it, or maybe vacated or modified on notice, in the manner in which other motions are made” (§ 324). I think this extends to a motion in court.

The proceedings must be set aside. Motion granted,