« PreviousContinue »
party relies, so that he may prepare to meet them. A notice of motion should therefore designate the papers annexed or accompanying, or already served and which are to be referred to, sufficiently to identify them and preclude any question on the point.**
Where a motion is based upon the record generally, as often is the case on a motion to dismiss an appeal, it is a sufficient designation thereof to say that the motion will be made“ upon the record” in the case,' at least if the record be already settled and printed, and unless the real objection is founded merely upon some specific part which ought to be pointed out.
96. Specifying irregularity.]— It is a general principle that a motion founded on irregularity must specify the irregularity complained of;? and under the New York Rules this specification must be contained in the notice of motion or order to show cause. 3 It is not enough that it appears in the affidavits or other papers served with the notice. 4
This rule, which is intended to require technical objections to be plainly disclosed on the first glance at the papers, does not apply beyond irregularities strictly so called." Objections going
39 Of course a moving party cannot anticipate, and is not required to specify in his notice of motion, any papers used in opposition to the motion. Farmers' Nat. Bank v. Underwood, 12 App. Div. 269, 42 N. Y. Supp. 500.
1 Broome v. Taylor, 5 Wkly. Dig. 181; mem. s. C., sub nom. Browne r. Taylor, 69 N. Y. 627. This practice is not to be encouraged, except where the entire record is involved. See also paragraph 112.
2 See paragraph 79, p. 114.
3 N. Y. Gen. Rule No. 37; Van Winkle v. Weaver Coal Co., 88 App. Div. 603, 85 N. Y. Supp. 82.
4 German-Am. Bank v. Dorthy, 39 App. Div. 166, 57 N. Y. Supp. 172; Garner v. Mangam, 46 N. Y. Super. Ct. 365 (omission from order to show cause fatal).
Montrait v. Hutchins, 49 How. Pr. 105 (omission from notice of motion fatal).
B“The defendant's notice of motion did not specify any irregularity as required by Rule 37, and consequently only jurisdictional defects can be considered. Rallings v. McDonald, 76 App. Div. 112, 78 N. Y. Supp. 1040 (mis-statement of character of action in recital in warrant of attachment an irregularity merely). Other examples of irregularities within the rule are:
The omission to comply with the rule (paragraph 84 on p. 116 of this volume), requiring motion papers to disclose any prior application. Mojarrieta v. Saenz, 80 N. Y. 547, 552. Or, the failure in applying for a commission in lunacy to give notice to one of several heirs at law apparent who had subsequently waived the omission by neglecting to take advantage of it. Matter of Rogers, 9 Abb. N. C. 141.
On a motion to set aside an inquisition this rule was approved and applied to exclude the objection that a writ of inquiry was not a proper remedy. Harder v. Harder, 26 Barb. 409.
to the substantial validity of the proceedings attacked by the motione are not cut off by failure to state them in the notice.
The general test of the applicability of the rule is to inquire whether the opposite party has a right to explain or answer by affidavit, or may properly be permitted to amend or perfect the proceedings on terms. Hence the rule does not apply to a motion to set aside a provisional remedy or other order on the ground of failure of proof in the affidavits upon which it was made; nor to a motion to dissolve an injunction, on the ground that the answer denies the whole equity of the bill.?
In Graham v. Pinckney, 7 Robt. 147, it was applied to exclude the objection that costs were inserted in a judgment without taxation, and that the appointment of a guardian ad litem was inserted.
It was so held even of a defect in a summons and a copy of papers served. Skinner v. Noyes, 7 Robt. 228; but the defect is not stated. If it affected the validity of the summons as process, the decision could not be sustained.
For cases turning on defects in provisional and other statutory remedies, see the particular subjects.
6 Such as a defect of jurisdiction in the officers before whom they were had. Blake v. Locy, 6 How. Pr. 108.
Or, a failure to file papers before publication of summons. Whiton v. Morning Journal Assn., 23 Misc. 299, 50 N. Y. Supp. 899, 27 Civ. Pro. 224.
Or, to vacate an attachment on the ground that the facts show no gro to support it. Andrews v. Schofield, 27 App. Div. 90, 50 N. Y. Supp. 132, 5 Anno. Cas. 311.
Or, a judgment rendered after an unauthorized adjournment which deprived the court of jurisdiction. Armstrong v. Loveland, 99 App. Div. 28, 90 N. Y. Supp. 711.
Or, a motion to vacate for want of due service of process going to the jurisdiction of the court. Weil v. Gallun, 75 App. Div. 439, 78 N. Y. Supp. 300; Emerson v. Auburn, etc., R. R. Co., 13 Hun, 150.
Or, to vacate a judgment against an infant, because this is not a case of irregularity within the rule, but an error of fact. Peck v. Coler, 20 Hun, 534.
Or, to vacate a judgment entered as if by default after service of an answer, which plaintiff thought was frivolous and treated as a nullity, for this is not a mere irregularity, but an unauthorized proceeding. Decker v. Kitchen, 21 Hun, 332.
The rule does not apply to a motion to vacate an order for insufficiency of the affidavit on which it was founded; since this is matter of substance, and aimed at the sufficiency of the entire proceeding, and not a technical irregularity. Dauchy v. Miller, 16 Abb. Pr. (N. S.) 100.
Nor to the issuing of an execution in violation of a stay of proceedings, for this is a substantial grievance, and not a mere irregularity. Jackson v. Smith, 16 Abb. Pr. 201, 25 How. Pr. 476.
Nor does the rule apply to a motion to open a judicial sale on the ground of surprise and mistake as to the existence of a regular judgment authorizing a sale. Kellogg v. Howell, 62 Barb. 280.
Nor to a motion by a creditor to vacate a judgment by confession, entered against his debtor, founded on the ground that the statement is insufficient to authorize a judgment to be entered. Winnebrenner v. Edgerton, 8 Abb. Pr. 419; S. C., 30 Barb. 185, 17 How. Pr. 363.
But the rule as thus qualified applies equally to motions before as after judgment.
7 Hanna r. Curtis, 1 Barb. Ch. 263; Andrews v. Schofield, 27 App. Div. 90, 50 N. Y. Supp. 132, 5 Anno. Cas. 311.
97. – effect of omitting to specify irregularity.]— If the irregularity is not stated in the notice of motion or order to show cause, an order granting the motion on the ground of the irreguiarity should be reversed on appeal; 8 and an order denying the motion cannot be reversed merely because of the existence of the irregularity, even though there was good ground for the motion, and the ground of denial was not indicated by the court; for in such case the denial will be presumed to have been made because of the omission. 10
And a party moving on the ground of irregularity may be treated as having waived irregularities not stated as a ground of his motion.11
98. Relief sought.]— The notice must state the relief sought by the motion; and in general the moving party is confined to the objects specified in his notice.12
Thus a motion for leave to amend must specify what particular amendment it is desired to make: 13 a motion to compel an amendment of an adversary's pleadingle or deposition by striking cut part must indicate what part, and a motion for a receiver must specify shortly but clearly of what he is to be receiver.
When the moving party's notice, or order to show cause, does not ask all he is entitled to, he can have no more than he specifically asked, if the other party fails to appear;16 and it is in such
8 Barker 1. Cook, 16 Abb. Pr. 83, 40 Barb. 254, 25 How. Pr. 190 (reversing an order on the ground, among others, that it was granted for an irregularity not specified in the notice). But this rule was refused application when the ground was fully stated in the allidavit, and was sought to be met by the opposing affidavits, and was discussed in the lower court. Livermore t. Bainbridge, 14 Abb. Pr. (V. S.) 227. 9 Shipman v. Shafer, 14 Abb. Pr. 449.
10 Lewis 1. Graham, 16 Abb. Pr. 126; followed in Matter of Nassau Elec. R. R. Co., 167 N. Y. 37, 43.
11 Mayor, etc., of N. Y. v. Lyons, 1 Daly, 296, 300, 24 How. Pr. 280; Harder v. Harder, 26 Barb. 409.
12 Alexander 1. Esten, 1 Cai. 152; but where the parties have been fully heard, the Appellate Court will not reverse because the Special Term granted incidental lief not asked for in the notice. King v. Barnes, 51 Hun, 550, 4 N. Y. Supp. 247.
13 Barker v. Walbridge, 14 Minn. 469 (amendment of pleadings).
Parsons v. Copland, 5 Mich. 143 (motion for leave to amend of assign: ment of error, “by adding thereto an allegation of another special ground of error, too vague to be granted”).
14 Robinson r'. Rice, 20 Mo. 229, and see MOTIONS AS TO PLEADINGS.
case error to grant more. If he asks more than he is entitled to he may be refused costs, 18 even if on the hearing he expressly offers to waive the demand as to that to which he was not entitled."
99. Prayer for general relief.- Costs.]— The prayer for other and further relief should never be omitted from the notice of motion; for it may, if the motion is opposed, justify relief not specifically asked; but it should not be relied on, for if the motion is not opposed it cannot enlarge the specified relief, nor even entitle to costs if they have not been asked.20
100. Signature, etc., of mover.]— It is not enough that a notice of motion should indicate the party on whose behalf the motion will be made. It must show that the notice itself comes from a party or attorney entitled to move; 21 and the appropriate method for doing this is by signature or subscription; which, however, may be printed.22 The address of the signer should be added. 23
The party giving a notice of motion may be held to the consequences of an error or ambiguity in signature24 or address, which has misled the party entitled to notice; but an error which has not misled does not prejudice.25
101. Effect of unqualified signature as a general appearance.] -Where a motion is made by one who has not appeared in the cause, and does not desire to, the signature should be qualified
17 Where an order has been entered granting relief that has not been covered in the petition or notice of motion, the opposite party is entitled as matter of legal right to have so much of the order vacated (on motion) as exceeded the prayer of the petition and notice of motion. So held in Ohly v. Ohly, 11 Wkly. Dig. 129; mem. s. C., 22 Hun, 617, where the court reversed an order denying such a motion.
18 Bates r. Loomis, 5 Wend. 78; Whipple v. Williams, 4 How. Pr. 28, 31. 19 Bates v. Loomis (above). 20 See paragraphs 159-162.
21 Kilmer v. Hathorn, 78 N. Y. 228, 231 (dictum as to notice to limit time to appeal); Buckman v. Carnley, 9 How. Pr. 180 (denying motion because notice did not show who it came from).
22 Barnard v. Heydrick, 2 Abb. Pr. (N. S.) 47, 49 Barb. 62; s. C., sub nom. Brainerd 1. Heydrick, 32 How. Pr. 97 (summons); followed in Mayor v. Eisler, 10 Daly, 396. Gen. Rules No. 2.
23 See INDORSEMENT, p. 64 of this volume. Gen. Rules No. 2. 24 Potter v. Tuttle, 2 Wend. 254.
25 See Chatham Nat. Bank v. Merchants' Nat. Bank, 1 Hun, 702. See article, COPIES, supra, paragraph 3. A more stringent rule is properly applıcable to those notices which are of a contractual nature, or form in thenselves the foundation of a new right. See NOTICE.
by adding “ appearing specially for the purpose of this motion and for no other purpose,” or words to similar effect, otherwise a notice of motion may be treated as a general appearance. 26 Signing, without qualification, as "attorney for defendant” upon a paper served admits the jurisdiction of the person.27
102. Address or direction.]— The written address or direction of a notice of motion to the party or attorney on whom it should be served, is a material part of the notice; for service on one to whom the notice is not addressed may prove ineffectual, 28 pecially if it be addressed to others.
An error in the address does not vitiate if the notice duly reaches the one intended and the error does not mislead.
103. Necessity of intervention of attorney.]— The general rule is that if a party has appeared by attorney, notices of motion in the cause should be signed by, or addressed to and served on him, instead of on the party, unless the attorney has been discharged of record.29
The exception to this rule, in the case of motions after final judgment, and in case an attorney is not to be found, depend on principles not peculiar to motions, and will be more conveniently stated in connection with Notices and Service of Papers.
D. ORDERS TO SHOW CAUSE. 104. Orders to show cause — used as Process. ]— There are several classes of cases in which a statute or settled practice prescribes an order to show cause as the proper method of commencing a proceeding. In some of these cases it is made the only proper method of acquiring jurisdiction over those proceeded against. Such are: Proceedings to disbar an attorney for misconduct ; 30 proceedings for a voluntary dissolution of a corporation; 31 proceedings to punish civilly for contempt not committed in the immediate view and presence of the court;
26 See Reed 1. Chilson, 142 N. Y. 152; Von Hesse v. Mackaye, 8 N. . Supp. 894.
27 See Chapter V, APPEARANCE.
32 N. Y. Code Civ. Pro., $ 2269; Golden Gate, etc., Co. v. Super. Ct., 65 Cal. 187, 3 Pac. 628. Compare $ 2273.