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ment to be entered, is made the subject of express provision in the Code. In sec. 436 and 437, the nature of the judgment which may be given on an action by the Attorney-General for the usurpation of an office, is specially prescribed ; and, in section 452, the following special restrictions are imposed, in relation to judgment in cases of forfeiture and eviction :
$ 452. Judgment of forfeiture and eviction shall only be given, in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion shall be adjudged in the action to be equal to the value of the tenant's estate, or unexpired term, or to have been done in malice.
In Linden v. Hepburn, 3 Sandf. S. C. R. 668, (reported 3. C. R. 165, as Linden v. Fritz,) it was held that relief of an equitable nature, could not be obtained in the same proceeding in which judgment for forfeiture and eviction was sought. A recovery for damages is, however, clearly not inconsistent with judgment of this description.
The above directions have reference to the entry of judgment, on the direction of a single judge, or the report of referees. That on the decision of the general term, on an appeal, or issue of law, differs in no essential particular: the component parts of the roll are the same, to which, where the judgment is on appeal, must be added the case on such appeal, with the costs and postea thereon, which papers must be annexed to the original judgment roll, so as to form one complete record, where practicable; or, if such be not the case, they may be filed separately. The form of the postea will be found in the Appendix. The judgment so entered may, of course, be docketed and enforced, in precisely the same way as in other cases.
Where the prevailing party delays entering up his judgment, his opponent, by means of a motion, may compel him to take the necessary proceedings for that purpose.—Bank of Genevu v. Hotchkiss, 5 How. 478; 1 C. R. (N. S.) 153. See, however, this subject more fully considered in a subsequent chapter, under the head of Appeal.
Where a judgment has been entered up in consequence of a verbal stipulation between the attorneys on both sides, the court will compel both parties to perform its terms. The rule requiring such agreement to be in writing, does not apply in a case of this description, where an advantage has been obtained by the one party, in consequence of the other's reliance on the arrangement, and where, in fact, the verbal agreement has been executed, by passing into a judgment.— Montgomery v. Ellis, 6 How. 326..
OF PROCEEDINGS CONSEQUENT UPON THE JUDGMENT IN CERTAIN
The proceedings here referred to, are those which become necessary, where the right of the prevailing party to recover has been adjudged upon, but the exact nature and amount of that recovery requires to be made the subject of further inquiry or assessment, before final action can be taken upon such adjudi. cation.
The course to be pursued under these circumstances, is either the granting of a reference, or assessment by a sheriff's jury, as the case may require. These proceedings are, as before shown, equally applicable to judgment taken by default, as to that on contested cases.
In those where the taking of a long account is involved, a reference is the proper course, as it would have been had such account come in question at the actual trial. The proceedings on a reference of this description, are precisely analogous to those on reference in general, as before detailed in the chapter devoted to the consideration of that subject. When the referee's report is obtained, it should be confirmed in the usual manner, as in all cases of interlocutory or consequential examinations of this nature; after which, if such report be confirmed without opposition, judgment may be entered without further application to the court, the referee's report being filed with and forming part of the judgment roll. The usual notices of taxation, &c., must, of course, be given as in other cases.
The proceedings, on a reference of this description, in cases of foreclosure, are prescribed in detail by Rule 49 of the supreme court. If the parties are “sui juris," the referee, in such case,
is to compute the amount due to the plaintiff, and to such of the defendants (if any) as are prior incumbrancers of the mortgaged premises.” This is all that is required, where the whole amount secured on the mortgage has become due. If such be not the case, the further duty is imposed on the referee, of examining and reporting whether the mortgaged premises can be sold in parcels. Where, however, the defendants, or any of them, are infants, or absentees, the order of reference must also direct the referee,“ to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiffs, on oath, as to any payments which have been made, and to compute the amount due on the mortgage, preparatory to the application for the judgment of foreclosure and sale." See form of order in Appendix.
On a reference of this latter description, the plaintiff's case must be proved in the usual manner, as on a hearing by the court, or before a referee of the whole issue. In those of the former nature, evidence of the amount due, and also, where the mortgage is only partially payable, of the nature and situation of the property, is all that will be required.
On the report being made, the plaintiff must move for judgment thereon, on the usual notice to any defendants that may have appeared; or, if none have done so, then ex parte, and without notice.
In the latter case, or unless all the defendants appear, he must be prepared with an affidavit that none of them are absentees, or with the report of the referee, as above, if such be the case. He must also be ready to furnish proof of the filing of the usual notice of lis pendens at least twenty days before such application, on which papers he may then move for final judgment, and, il granted, may perfect that judgment, in the manner alluded to in the last chapter. The practitioner will remember that foreclosure is one of those cases in which, under sec. 308, an additional allowance may be applied for, and will almost, as of course, be granted ; and that such application must be made prior to the entry of final judgment, and may be simultaneous with the motion for that purpose.
A reference of a somewhat similar nature, viz. : “ to take proof of all the material facts alleged in the complaint,” is prescribed by rule 68, as a necessary proceeding in all divorce cases whatsoever, where judgment is taken by default, or for want of a sufficient denial in the answer. The course of proceeding, under these circumstances, is substantially the same as that on a reference of the whole issue, except as regards the consequent entry of judgment thereon. The plaintiff's case must be regularly proved, and, on the referee's report being obtained, it should be confirmed, and an application be made to the court for final judgment thereon in accordance with the finding, on due notice to any party or parties who may have appeared.
In partition, a reference of a similar nature is necessary in all cases, where any of the defendants are infants, absentees or unknown, even though the case, as stated in the complaint, be not controverted. A reference of this description may be obtained by the plaintiff, on application to the special term, on an affidavit of the facts and notice to all parties who have appeared.
The duties of a referee, in this respect, are prescribed by rules 78 and 79 of the supreme court. The form of an order of reference of this description, grounded on the rules in question, will be found in the appendix. “ The plaintiff's title and interest in the premises,” and “ the several matters set forth in the bill or petition, must, in all cases, be proved, and the referee must likewise ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances by which the same are held. With reference to the date at which the partition will be held to have been made, as regards the consequent rights of the parties, see Van Orman v. Phelps, 9 Barb. 3 C. R. 500, cited in the last chapter.
In cases where the property is so circumstanced, that partition cannot be made without prejudice to the owners, (due regard being had to the powers of the court, and to the ability of the parties, in respect to the adjudication and payment of amounts for owelty of partition) or in those where, under similar circumstances, any separate lot exceeds in value the share to which either of the tenants in common may be entitled, the plaintiff, on stating the fact in the affidavit on which the order of reference is to be obtained as above provided, may have a direction inserted to the referee to enquire and report whether the premises, or any part thereof, are so situated, that an actual partition cannot be made, and that a sale ought to be had, stating the reasons for such conclusion, and, in such case, to state further the nature and extent of the liens and incumbrances on the property, and the amounts due thereon respectively, to the
intent that proper directions may be given. See detailed form of order, under these circumstances, in Appendix, as before referred to. The order on the special proceedings for sale of an infant's undivided share, without partition, under the provisions of the Revised Statutes, is, when obtainable, of an analogous nature to the above.
On a reference of this description being obtained, the whole matter must be gone into, and the title fully examined by the referee, and all special circumstances whatever in relation to the property, or necessary for the information of the court on making a decree for its partition, must be shown. On this report being made, it must be confirmed in the usual manner, and the cause then set down for hearing and brought on in regular course, and a decree made, the form of which, embracing the different contingencies most likely to occur, is given in the Appendix. The proceeding is one, however, as to which the Code makes no further provision than as above cited, and therefore it would be out of place, and in variance with the plan adopted at the outset, and rigidly observed throughout the work, to do more than to notice the facts, and to refer the student to the former works on the subject.
The above are the principal cases in which a reference will be the proper course, in order to supply the information necessary to the complete and final entry of judgment, and consequent on the first application for that purpose. A class of cases remains to be noticed, in which, assessment by a jury will be the more proper course to arrive at the same result. See Brown Miller, 1 Barb. S. C. R. 24. To this category belong all cases in which unliquidated damages, of any nature whatever, are sought to be recovered; or where any other matter of proof, not involving the bare investigation of accounts, requires to be gone into in detail, before the exact measure of justice to be dealt out upon the admitted or adjudicated rights of the prevailing party, can be fully ascertained.
The form of judgment to be entered, where this course is the proper one, is given in the Appendix, as before roticed. The proceedings on that judgment are simple. A certified copy of the order of the court must be lodged with the sheriff, who will thereupon summon a jury, and appoint a time and place for the hearing. Due notice of that time and place must be given to the opposite party, exactly as in cases of an ordinary trial,