Jellinghaus v. The New York Insurance Co. JELLINGHAUS v. THE NEW YORK INSURANCE COMPANY. 1. Where a defendant has a verdict against him at the trial, and makes a case to which amendments are served, and judgment is entered on the verdict while the case and amendments are with the Judge to be settled, the Court has the power, after the time to appeal has expired, to relieve the defendant from the judgment, and permit him to be heard on the case. 2. But in order to justify the granting of such relief, the case should be one of unquestionable mistake on the part of the defendant, and evince perfect good faith, and should be meritorious. 3. Granting such relief even in such a case is going to the extreme verge of judicial discretion. 4. If granted, it should be upon terms of securing to the plaintiff payment of his verdict and costs, if a new trial is denied; and an election to admit service of notice of appeal as of the time that it might have been served as a matter of course, and thus restrict the defendant to a hearing, upon such appeal, of any exceptions he may have taken at the trial. (Before BOSWORTH, Ch. J., and HOFFMAN, WOODRUFF, MONCRIEF and ROBERTSON, J. J.) Heard, February 18; decided, February 25, 1860. A case THIS action was tried on the 28th of January, 1859. containing exceptions taken at the trial was served on the 10th of February, and amendments thereto on the 8th of March, and soon thereafter the exceptions and amendments were left with the Judge to be settled, and were settled in July, 1859. In the meantime, and on the 19th of May, judgment was perfected and notice thereof was served on the defendants' attorney, but no appeal was taken from the judgment. After the case was settled and had been engrossed, and in September, 1859, the attorneys met together and examined it with a view to see that it was correctly engrossed and in a proper condition to be printed. The plaintiff's attorney did not then suggest that the defendants had no right to be heard further, and undoubtedly for the reason that he took it for granted that a notice of appeal had been duly served. Under date of September 20, 1859, plaintiff's attorney wrote to defendants' attorney thus: "I learn from my Clerk that no appeal was ever taken in this case." Jellinghaus v. The New York Insurance Co. From that time until the 30th of November, 1859, the attor neys had interviews oral and written as to the posture of the case, and with a view on the part of defendants' attorney to procure a removal of the obstacles to his being heard on the exceptions. The position taken by the plaintiffs' attorney was, that although he was willing to oblige the defendant's attorney in every way possible consistent with his duty to his client; yet that judgment had been regularly entered and notice thereof given, the time to appeal had elapsed, and the case and exceptions could not be heard, and he was not at liberty and had no power to waive the rights which his client had thereby acquired. The affidavits show that the defendants' attorney acted in perfect good faith, and at no time suspected there was a doubt of his right to be heard on the exceptions, until he received the note of the 20th of September, 1859; and that he mislaid and entirely forgot that a notice of the entry of the judgment had been served upon him. On the 20th of November, 1859, he gave notice of a motion to set aside the judgment for irregu larity, on the ground that the making of the bill of exceptions, service of amendments thereto and submitting the same for settlement operated as a stay of proceedings; and at all events to be relieved from it on terms on the ground of surprise and mistake. That motion was denied by an order made on the 16th of January, 1860, and from that order the defendants appealed to the General Term. R. S. Emmet, for appellant. B. D. Silliman, for respondent. BY THE COURT-BOSWORTH, Ch. J. Section 174 [149] of the Code allows the Court "in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment * *taken against him through his mistake, inadvertence, surprise, or excusable neglect." Before the Code, and prior to the passage of the act of the 13th of April, 1832, (chap. 128,) it was well settled that the service of a bill of exceptions, of amendments thereto, and a sub Jellinghaus v. The New York Insurance Co. mission of them for settlement before judgment had been entered, operated per se as a stay of proceedings. (Roosevelt v. The Heirs of Fulton, 7 Cow., 107; Pelletreau v. Moore, 9 Wend., 493.) The act of April 13, 1832, allowed judgment to be entered after the exceptions were settled or a case had been made, and the exceptions to be heard subsequently. But that act in terms applied only to the Supreme and Circuit Courts, and did not affect proceedings in this Court, or in the Courts of Common Pleas of the several counties. The rule in those Courts continued unchanged down to the time the Code took effect. Prior to the act of 1832, bills of exceptions taken at the Circuits were heard in the Supreme Court before judgment was entered. Those taken in the Courts of Common Pleas (except the city and county of New York) were reviewed in the first instance by a writ of error from the Supreme Court to the inferior Court. * The Code declares that a motion for a new trial on a case or exceptions, * must, in the first instance, be heard and decided at the Circuit or Special Term, except in a single specified case. It is not surprising that an attorney, conscious that his adversary was distinguished for his fairness and liberality, and therefore not feeling any necessity for extreme watchfulness over the regularity of his proceedings, and having totally forgotten that a notice of entering judgment had been served; should have deceived himself into the conviction that his proceedings were regular and that he had secured the right to be heard on the exceptions. And the plaintiff's attorney, in declining to waive the default now, does so only because he supposes he has not the power, authority and right to do it. But the defendants' attorney does not, by his affidavits, show that he supposed the plaintiff was stayed, by the submission of the proposed exceptions and amendments for settlement, from entering judgment; he seems to have had and acted upon the impression that he would be heard as a matter of course at the General Term. We think that section 264, [219,] by declaring "that if a different direction be not given by the Court, the clerk must enter judgment in conformity with the verdict," in effect, enacts that Jellinghaus v. The New York Insurance Co. Such proceedings shall only be stayed by order of the Court. And that if no stay be granted by the Court or a Judge before judg ment is perfected, the defeated party cannot subsequently make a motion for a new trial under section 265 of the Code. party, however, if he has taken exceptions may appeal from the judgment and on such appeal have the exceptions considered, provided he prepares a bill of exceptions and has it settled, within the time prescribed by the rules of the Court. If the meaning and effect of section 264 be not such as is above suggested, then it does not occur to me that the provisions of the Code are inconsistent with the rule declared in 7 Cowen and 9 Wendell, (supra,) and if they are not, section 469 would justify the belief that it continued in force. But I think the provisions of the Code do not favor the conclusion that a bill of exceptions per se stays the entry of judg ment. It did not in the Supreme Court after the act of 1832 (supra) was passed, and that act has no application to suits commenced under the Code. In this view the plaintiff is entirely regular. The defendants had no right to be heard at Special Term after the judgment had been regularly perfected. (15 J. R., 354; 4 Hill, 125.) They could not be heard at General Term because they omitted to appeal within the time allowed by law. It is very clear, however, that this has resulted from the mistake of the defendants' attorney. And, practically, the question is, is he so utterly without excuse that his clients must abide by the consequences of it. It is very clear, that he acted in good faith. He prepared his case promptly; and there seems to be no want of diligence, after he knew it was settled, to get it in a condition to be brought before the Court. He had forgotten that he had ever been served with a notice. of judgment, and even now has no recollection of it. This is easily explained, when it appears that he supposed he had a right to be heard as a matter of course. Having that conviction, service of such a notice would be regarded by him as unimportant, and would make no impression and would not be recollected. Some two months at least, after the time to appeal had expired he and the plaintiff's attorney met and compared an engrossed Jellinghaus v. The New York Insurance Co. copy of the bill of exceptions with the proposed exceptions and amendments, and the alterations therein, made by the Judge in settling them. This labor was expended by both attorneys under the conviction of both, that the case was one on which the defendants had a right to be heard, and on which he would be heard as a matter of course, the one supposing that no notice of appeal was necessary, and the other that a notice of appeal had been duly served. In the present case, a hearing can be had, without subjecting the plaintiff to any prejudice, except such as may result from the mere delay that must occur to enable such hearing to be had. The defendants can be compelled, as a condition to granting them any relief, to give perfect security to pay the sum recovered with interest and costs, if such security be deemed of any importance. Under such circumstances, as the good faith of the defendants' attorney cannot be and is not questioned, as it is indisputable that it is wholly owing to his mistake, in respect to the proper practice to be pursued, that his clients have lost the privilege to be heard as a matter of strict right; and as a hearing can be had without much delay, and as the plaintiff can be made perfectly secure of being paid the verdict, with interest and costs, (if the verdict be just and ought to stand,) I think the plaintiff should be relieved from the judgment. It is not questioned that the exceptions taken present points deserving a careful consideration. In Case v. Shepherd, (1 J. C., 245, in 1800,) the Court allowed a motion for a new trial on a case to be heard after judgment perfected, on the ground that the defendant's attorney had misconstrued the 4th Rule of January Term, 1799. In the same case, the rule was stated to be that the Court, "will not hear an argument to set aside a verdict, default or inquisition, after a judgment has been duly entered." In Jackson, ex dem., v. Chace, (15 J. R., 354, in 1818,) the Court refused to hear a motion for a new trial on the ground of newly discovered evidence, noticed to be made after judgment perfected. The Court said, "in no case has a motion for a new trial been heard, after a judgment has been regularly perfected. The case of Shepherd arose soon after the present rules and orders of the Court were made, and the Court, under the particular circum |