« PreviousContinue »
clusion was come to in Robertson v. Weeks, 6 How. 161, 1 C. R. (N. S.) 311, where an assignment of a judgment in trover was held to be good, and a payment to the sheriff, though without notice of such assignment, on an execution against the original holder, was held to be of no avail to discharge the judgment, as against the assignee.
The power to make a special allowance in respect of the costs of these proceedings is thus conferred by sec. 301.
§ 301. The judge may allow to the judgment creditor, or to any party so examined, whether a party to the action or not, witnesses' fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs.
In the case of Davis v. Turner, 4 How. 190, the question as to the costs to be allowed under this section, was fully considered, and the following decisions come to, i. e. First, That a party to an action, when examined, is entitled to be paid the ordinary witnesses fees and disbursements at once, but that any allowance to be made to him in respect of costs, cannot be claimed until the proceeding has been brought to a close as to him, and terminated in his favor. Second, that no such allowance in respect of costs can be made to an ordinary witness, not a party to the proceeding, who is only entitled to his fees and disbursements, but, Third, that a person not a party to the original action may be made a party to the supplemental proceedings, so as to become entitled to an allowance in respect of costs, if relief be thereby sought against him, and he prevail in his opposition thereto. See also Boice v. Turner, 4 How. 195, decided in the same way. It appears, however, very doubtful, notwithstanding these cases, whether any witness examined merely as such, on the subject of property of the debtor alleged to be in his hands, might not successfully assert a claim in respect of costs, in addition to the ordinary legal fees and disbursements. The words, “ whether a party to the action or not,” appear fairly capable of a much larger construction than is there given to them, and instances of very great hardship might constantly arise, with respect to the trouble and loss of time of witnesses so examined, for which they are fairly entitled to compensation. The proceeding is, as to third parties, inquisitorial in its nature, and it may well be contended, that the intention of the act was that a fair compensation should be allowed by the judge in such cases, and that such is its true construction.
The powers of the court, in this respect, were held in Engle v.
Bonneau, 2 Sandf. S. C. R. 679, 3 C. R. 205, to be only applicable to cases where the party has been actually examined, and not to authorize the giving of costs as above, on an order set aside for irregularity.
The last provision to be noticed under this head, is the power to enforce obedience to the orders of a judge or referee, conferred by sec. 302, as follows:
$ 302. If any person, party, or witness, disobey an order of the judge or referee, duly served, such person, party, or witness, may be punished by the judge as for a contempt. And in all cases of commitment under this chapter, or the act to abolish imprisonment for debt, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment by the court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just.
The proceedings under this section are governed by the rules laid down in title XIII. of chap. VIII. of part III. of the Revised Statutes, except in so far that an attachment under this section may be made returnable before the judge who grants it, at his office. -Re Smithurst, 4 How. 369; 2 Sandf. S. C. R. 724. The judge may either grant an order to show ca'use, or issue an attachment in the first instance, though the former is the ordinary course. The issuing of such attachment is a matter resting entirely in his discretion, nor can the correctness of his conclusions on the evidence adduced before him, be reviewed on habeas corpus.
In appears from the case in Re Pester, 2 C. R. 98, that the judge's power to commit a defendant for disobedience of an order, under sec. 297, was, under the provisions of the late Code, unlimited as to the period of imprisonment, and might be exercised, even though the defendant denied on oath that he had any property to be affected by such order. It will be seen that, by the amendments as they now stand, relief is obtainable in cases of this nature.
OF THE GENERAL INCIDENTS OF APPEALS.
The consideration of this most important branch of jurisdiction resolves itself naturally into two main branches.
1. The review of the decision of a single judge, by the full bench of the court of which he is a member.
2. The review of the decisions of an inferior court, by that immediately superior in jurisdiction.
The first of these branches divides itself again into two main categories, viz. :
1. The review of a judgment entered on the final determination of the issues in the action, or any of them.
2. The review of interlocutory orders, made during the progress
of the cause. The subsidiary questions that arise out of these different heads are also numerous, and are, of necessity, much mixed up, the one with the other; and a strictly logical division of the subject is rendered still more difficult, by the distinctions which have been made between appeals from justices' courts, and those from the decisions of the higher jurisdictions.
With a view to obviate this last inconvenience, the arrangement which suggests itself as the least involved, is, to treat separately of appeals from the lower jurisdictions, at the outset, reserving those from the superior courts, for the subsequent chapters; and, in relation to the latter, to consider the formal proceedings common to all without distinction, under a separate head, before proceeding with the details with reference to each peculiar mode of review. This line of arrangement will be accordingly pursued; the latter branch of the subject commencing with the consideration of appeals from orders, and continuing with that of those from judgments, in regular progression from the lower to the higher jurisdiction in each case.
In Barnum v. The Seneca Countg Bank, 6 How. 82, 1 C. R. (N. S.) 405, the relative powers of the general and special terms in these matters are thus defined : “A general term, and a special term, or circuit, stand to each other in the same rela. tion which has ordinarily subsisted between courts of appellate and courts of original jurisdiction. It is the province of the appellate court, to determine for itself of what causes and questions it has jurisdiction, and how and when jurisdiction was obtained."
Proceeding upon the arrangement thus laid down, but few, and those not lengthened observations, appear necessary in relation to appeals in general, irrespective of the peculiar tribunal in which relief is sought.
The whole of the ancient machinery of the writ of error is swept away, without reservation, by sec. 323, in the following unqualified terms :
§ 323. Writs of error in civil actions, as they have heretofore existed, are abolished, and the only mode of reviewing a judgment, or order, in a civil action, shall be that prescribed by this title.
An appeal being, however, a substitute for the writ of error, brings under the consideration of the appellate court, the same class of questions as were formerly cognizable under the latter proceeding.–Morgan v. Bruce, 1 C. R. (N. S.) 364.
An appeal may, under sec. 325, be made by “any party aggrieved.” It is clear that this definition is wide enough to include every description of party, who, under the old practice, was entitled to bring a writ of error under similar circumstances, under the provisions of art. I. title III, chap. IX. part III. of the Revised Statutes, and particularly under the first seven sections of that article.
The old nomenclature of appellant and respondent is continued by sec. 326, but the title of the action is not to be changed in consequence of the appeal. This, of course, is only
applicable to the arrangement of the names of the parties, and not to the name or style of the court. All papers on an actual appeal must, therefore, be entitled in the appellate, and not in the lower jurisdiction. Clickman v. Clickman, 1 Comst. 611; 3 How. 365; 1 C. R. 98.
On appeal from a judgment, any intermediate order involving the merits, and necessarily affecting the judgment, may be reviewed, under the power given for that purpose by sec. 329.
In the last place, the form of judgment which it is competent for an appellate court to pronounce, is thus expressly prescribed by sec. 330.
§ 330. Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment.
The power of that court is, however, limited to the different points mentioned in the notice of appeal. Only such parts of the judgment as are appealed from, can be reviewed.—Kelsey v. Western, 2 Comst. 500. Of course a reasonable degree of care in the preparation of that notice, will effectually prevent any practical inconvenience from arising in relation to this rule.See the same subject hereafter considered.
OF APPEALS FROM JUSTICES COURTS.
It will not be necessary to detain the reader for any length of time, on the consideration of this class of appeals, the practice in the courts in question not entering within the scope of this work.
By sec. 351, the whole of the previous existing enactments on the subject of appeals of this nature are swept away, and the provisions of the Code substituted for them in all cases.