Averill agt. Patterson. the practice under the Code, and the continuance of the practice is, it seems to me, preserved in the most explicit terms by the 469th section of the Code, and the 90th rule of the supreme court, and such is the construction put upon this section of the Code, and this rule of court, by the supreme court, in Bedell agt. Powell. (3 Barb. R. § 183; see pp. 185, 186.) There is, it seems to me, very great fitness in this practice. The idea of discontinuing a suit by the bare service upon the party, or his attorney, of a notice, is certainly a very loose and dangerous practice to sanction. The notice of discontinuance may be served upon the defendant personally, before any appearance by attorney in the cause, and the notice may be served by the plaintiff himself, and this notice of discontinuance may be lost, and the plaintiff proceed to judgment in the action, and then comes a contest between the parties, as to whether the judgment shall be set aside, and this, of course, must be determined upon affidavits and upon the oath of the parties, and which offers the strongest temptation to perjury on the part of the plaintiff to hold on to a judgment which he has already obtained, and if he shall deny on oath such service, the defendant may be in many cases remediless, and such a judgment may be procured by the plaintiff after service of his notice of discontinuance, and the defendant know nothing of it, and if the defendant should chance to die before the plaintiff seeks to enforce his judgment, I do not see how, in many cases, his personal representatives could ever get rid of the judgment. There is no hardship in requiring the plaintiff to enter an order, where he desires to discontinue his action, and then the records of the court will always show the fact, and will leave no opportunity for dispute between the parties. The clerk of each county in the state is required, by rule 4 of the court, to keep a book for the entry of such orders, and I think we should require the order to be entered in all cases. If I am right in the views above expressed, that it was necessary that an order should be entered to discontinue the first action, then the reply in this case is bad, as no such thing is alleged in the reply, and the court below erred in overruling the demurrer. If, however, my Tallman and others agt. Hinman and others. brethren should be of opinion that the practice of formally entering a rule or order discontinuing the suit is abolished by the Code, then the reply is good, and the court below were right in overruling the demurrer. The court being of opinion that the rule or order of discontinuance must still be entered, the judgment of the court below, overruling the demurrer, must be reversed, and judgment given for the defendant on the demurrer. SUPREME COURT. TALLMAN and others, respondents, agt. HINMAN and others, appellants. An order denying a motion to set aside a judgment, and for leave to the defendants to appear and answer, for irregularity, on the ground that no court is named in the summons, is not appealable. Monroe General Term, September, 1854. JOHNSON, WELLES, and T. R. STRONG, Justices. The summons in this action does not contain the name of any court. It was served on the 31st of October, 1853, and was not accompanied with a complaint. The defendants did not appear, and on the 22d of November, 1853, judgment in the action against the defendants was entered in this court in the clerk's office of Cayuga county. A motion was made by the defendants, at a special term of the court held in Syracuse, before Mr. Justice PRATT, to set aside the judgment, and for leave to the defendants to appear and answer, for irregularity, in that no court is named in the summons, which motion was denied. The defendants appealed from the decision to the general term. GEORGE RATHBUN, for appellants. By the court-T. R. STRONG, Justice. It is objected preliminarily, that the order at special term was not appealable. An appeal could not be taken from it unless the order is within § 349 of the Code. There is no other provision which author Tallman and others agt. Hinman and others. izes the appeal. That section allows an appeal from an order in the cases specified in its several subdivisions, but it is clear that none of them embrace this order, unless it is the third. The third subdivision is, "when it involves the merits of the action, or some part thereof, or affects a substantial right." In St. John agt. West, (4 How. Pr. R. 329,) the word “merits,” as here used, is held to mean "the strict legal rights of the parties, as contradistinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court ;" and this, I think, the correct interpretation. It cannot be contended that this order involves the merits of the action, thus understanding the term merits; it relates merely to a matter of practice the form of a proceeding. The summons is not void; it is at most merely voidable for an omission to comply with the practice, which, however proper, is entirely dependent upon the discretion of the court. It is not a statutory requisite of a summons that it shall state the name of the court in which the action is brought; § 128 of the Code, which prescribes the requisites of a summons, is silent on the subject. The counsel for the defendants supposes that the 57th section of the judiciary act (Laws of 1847, p. 335) in relation to the return of process, is applicable to this case, but I am satisfied this is a mistake. Does the order then affect a substantial right of the defendants? If the view above expressed, that the order relates merely to the practice, which is entirely governed by the discretion of the court, is correct, it is difficult to see how any substantial right of the defendants can be affected by it. A party cannot be said to have a right to what a court has a discretion to grant or withhold. The legislature must have intended by a substantial right, a fixed determinate right independent of the discretion of the court, and of some value. Such a right must exist and be injuriously affected by an order to bring a case within the subdivision above given. The preliminary objection must therefore be sustained, and the appeal dismissed. Jemima Wilcox agt. Sarah Curtiss. SUPREME COURT. JEMIMA WILCOX agt. SARAH CURTISS. Where at the circuit a verdict is directed for the plaintiff subject to the opinion of the court at general term, the plaintiff on a case made and decided in his favor is entitled to a trial fee of an issue of law ($15.) Such being a calendar cause, the printer's fee for the case and points (as required by rule 30) is a proper disbursement charge for the plaintiff also the clerk's fee ($1) is allowable. Chenango Special Term, October, 1854.-Motion by the defendant that the clerk of Chenango county readjust the costs in this action. R. J. BALDWIN, for motion. CRIPPEN, Justice. On the trial at the circuit a verdict was directed for the plaintiff subject to the opinion of the court at general term. A case was made and argued at general term, and judgment ordered for the plaintiff on the verdict with costs. In adjusting the plaintiff's costs the clerk allowed fifteen dollars for a trial fee of an issue of law at general term; six dollars printer's fees for printing cases, and three dollars printer's fees for printing plaintiff's points; also one dollar for clerk's fee on trial at general term. The defendant's attorney duly objected to the allowance by the clerk of each of the foregoing items. It is insisted on the part of the defendant that the plaintiff is not entitled to any costs for the argument of the case at general term; that the court in any event could allow but ten dollars costs to the prevailing party, it being a mere motion, the costs of which are prescribed by § 315 of the Code; and inasmuch as the order of the court at general term omits to specify the amount of costs, none can be allowed to the prevailing party on the motion for judgment on the verdict. It appears that the judge at the circuit directed a verdict for the plaintiff, subject to the opinion of the supreme court at general term, as authorized by §§ 264 and 265 of the Code. A case was made and settled containing the proceedings upon the trial; this was Jemima Wilcox agt. Sarah Curtiss. done by the plaintiff's attorney, and for the purposes of this motion must be regarded as having been done by the direction of the judge on the trial at the circuit. (See last clause of rule 28.) I am of opinion that this was a calendar case for the general term-an enumerated motion under rule 27. Enumerated motions are motions arising on special verdict, issues of law, cases, appeals from inferior courts, and appeals by virtue of § 348 of the Code. Rule 28 requires the papers to be furnished in a case like the present by the party making the motion. The plaintiff, before moving for judgment on the verdict, was bound to notice the case for argument, and cause it to be placed on the calendar at general term. (Rule 34.) Rule 30 directs that cases and points, and all other papers in calendar causes, shall be printed and furnished to the court at general term. If this rule is not complied with, the court will not allow an argument to be brought on, although the case may be upon the calendar. It seems to me on a careful examination and comparison of the sections of the Code and rules of the court bearing upon the point presented in this case, that the argument of the motion for judgment on the verdict must be regarded a trial of an issue of law within the purview of § 307 of the Code. The simple facts of the case are, that the questions of fact were tried at the circuit; the questions of law were reserved for argument and trial at general term; a case was made by direction of the judge, duly settled and noticed for argument at general term, placed on the calendar, argued and decided. The court ordered judgment for the plaintiff on the verdict with costs. I think the plaintiff is entitled to the trial fee of the issue of law at general term. If this was properly a calendar case, which I am inclined to hold it to be, then the printing of the case for the court, and the points of counsel, were required by rule 30; consequently the printer's fees was a proper item of disbursement to be allowed to the plaintiff. The clerk also was entitled to a fee of one dollar for the trial of the issue of law. (§ 312 of the Code.) |