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previous notice is not generally requirable, and whether it be or no, the fact that the giving of the notice is entered in the minutes, and is heard before the judicial officer who is hearing the case, and is ready to pass on an objection to it, is a sufficient safeguard against abuse 26
The third meaning - actual or constructive notice - appears in the doctrine that a party must take notice of decisions in his own favor on his own application; and in the doctrine that a party may be guilty of contempt in violating, in advance of receiving express notice, an injunction of which he had actual knowledge or even reason to believe had been granted,27 or may be charged with costs28 for proceeding in disregard of the fact.
2. In what proceedings necessary.]— It is a general principle that in every proceeding of a judicial nature both parties are cntitled to be heard, and notice to both is indispensably re
26 Killip v. Empire Mills, etc., Co., 2 Nev. 46; Kerr v. McGuire, 28 N. Y. 446. In Railroad Co. v. Blair, 100 U. S. 661, where it was held that allowance of an appeal in open court, in presence of appellee's counsel, at a term subsequent to the rendition of the decree, the case being duly docketed in this court, will justify appellants in inferring that a citation would be waived, the court say: “ The theory of the rule is, that as a party to a suit is constructively present in court during the entire term at which his cause is for hearing, and as the doings of the court are matter of record at the time, he is chargeable with notice of all that is done during the term affecting his suit; because, if actually absent when an order is made, he can on his return obtain full information by an examination of the minutes. Still, an appeal otherwise regular would not probably be dismissed absolutely for want of a citation, if it appeared by clear and unmistakable evidence outside of the record that the allowance was made in open court at the proper term, and that the appellee had proper notice of what had been done.
“ The records of the court in this case show an allowance of the appeal in court when the appellees were present by their solicitors. It was, however, at a term subsequent to the rendition of the decree, and under the practice a citation was necessary to bring the appellees to this court.”
But under the Codes of Procedure the usual principle is that notices must be in writing duly served. N. Y. Code Civ. Pro., $ 796.
27 Conover v. Wood, 5 Abb. Pr. 84; Hull v. Thomas, 3 Edw. 236 (violating order with knowledge of it, before service of copy), approved in Endicott t. Mathis, 1 Stockt. (N. J.) 110, 114; Cape May, etc., R. R. Co. r. Johnson, 8 Stew. (N. J.) 422; s. c., 14 Repr. 595 (here proceedings for contempt for the violation of an injunction were sustained, notice thereof having been given the defendant by telegraph); Davis 1. Davis, 83 Hun, 500, 32 N. Y. Supp. 10; Haring v. Kaufman, 13 N. J. Eq. 397, 78 Am. Dec, 102; Winslow r. Nason, 113 Mass. 411. Presence of the party in court when the order is made renders disobedience of it a content, although not formally served. See Koehler 1. Farmers' Bank, 17 Civ. Pro. 307; McDonnell v. Henderson, 74 Iowa, 619.
28 Kellog 1. Klock. 2 ('ode Rep. 28 (fact that plaintiff had been informed defendant was an infant, ground for giving costs on vacating judgment entered without appointing guardian).
quisite.29 When, however, they have had such notice, they are thereafter deemed to be before the court,30 and the necessity of notice of particular steps in the proceedings depends on whether it is required by statute, rule, or settled practice.3
3. Notice of proceedings taken.] – In general a party (except a defendant who has not appeared) is entitled to formal notice of proceedings which the other party has taken in the cause wherever the right of the former to proceed in turn depends on the fact or the time of the proceeding that has been taken. Thus, although he who gets an order or judgment can sometimes proceed under it without giving notice that it has been had, yet he does not cut off the time of the other party to move against it or appeal unless he gives such notice; and the time limited for movingate or appealing begins to run from the giving of such notice.
29 People v. Tallman, 36 Barb. 222, and see pages 85, 86, and cases cited. The general principle is well stated in the Appeal of Lancaster, 111 Pa. St. 524, 4 Atl. Rep. 333, 335, thus: “ Where an order, decree, or judgment has been wrongfully entered, without notice to a party who was entitled to notice, such party may demand its vacation, at least to the extent that it affects his interest. His right is that he be heard before the judge or court decides, not that there may be an ex parte hearing and adjudication, after which he may, if he can, show that the adjudication unjustly affects him;" so held, reversing an order of the Orphans' Court appointing a trustee of unobjectionable fitness by reason of omission to give notice of the proceedings to all parties in interest. McDermott c. Board of Police, 25 Barb. 635 (removal of police officer without notice). Yelton v. Addison, 101 Ind. 58 (recording road used as highway vacated because done without notice to the owner, although the statute authorizing the proceeding said nothing about notice). Smith v. Reid, 134 N. Y. 568, Oregon R. R. Co. t. Lane County, 23 Oreg. 386; N. J. Turnpike Co. v. Hall, 17 X. J. L. 337.
30 Governor v. Lasseter, 83 No. Car. 38; Sharpe v. Fowler, 16 Ky. 446. Sec note 26 on page 192, and next note (below).
31 See Motions, p. 85, paragraph 25. Thus a requirement that a party file a paper does not imply a requirement that he give notice of the filing. Greff 1. Fickey, 30 Md. 75 (plaintiff's affidavit of amount due); Douoy 0. Hoyt, 1 Code Rep. (N. S.) 286 (filing of pleading pursuant to order of court).
Under the old practice, still in force in some jurisdictions, a party once in court must at his peril take notice of all orders and pleadings filed by order of the court. But the distinction between motions or pleadings filed by order of the court, and those filed by the party at his own instance, is quite obvious. Meredith v. Santa Clara Min. Assn., 60 Cal. 617; Williams v. Miller, 1 Wash. Terr. 88.
Under that practice a motion filed in term time does not require notice to the opposite party when it has reference to a proceeding before the court at the term at which the motion was made. Accordingly where plaintiff moved for a final decree which was granted (order making an injunction perpetual), a motion by the defendant to set the order aside on the ground that he had no notice of the motion, was held properly denied. Wagner v. Tice, 36 Iowa, -599. 32 Bissell r. N. Y. C. R. R. Co., 67 Barb. 385.
The application of this principle to orders and decisions on motions is more fully stated elsewhere. 33
4. Signature.]—A formal notice given in the course of litigation must show that it comes from a party or attorney who is entitled to give it,34 and the appropriate method of doing this is by signature or subscription,35 which, however, may be printed. 38 The address of the signer should be added. 37
The omission of signature in cases where signature is not expressly required, does not necessarily vitiate, if the notice is delivered by the person who should have signed it,38 so that the person receiving it could not be misled; but the fact of such
33 Art. XVII, on ORDERS, p. 206 of this volume. 34 See paragraph 1, supra, and notes.
35 Required by N. Y. Gen. Rules of Practice No. 10; Demelt v. Leonard, 19 How. Pr. 182. Where a party has appeared in the action, the notice must be subscribed by the attorney and not by the party. Halsey v. Carter, 29 X. Y. Super. Ct. 535.
Under a statute directing notice to be given in writing, signature is essential, except, perhaps, where the notice is delivered in person by him who should have signed it. Eaton v. Supervisors of Manitowoc Co., 42 Wis. 317.
A notice to take depositions that is unsigned is insufficient. Where depositions were taken upon such a notice, the opposite party not attending either in person or by attorney, they were suppressed. Bohn t. Devlin, 28 Mo. 319.
Service of notice of appeal from magistrate's judgment was admitted by indorsement. The notice was unsigned. Motion to dismiss the appeal for insuflicient notice was sustained. Larrabee 1'. Morrison, 15 Minn. 196.
Notice of appeal, which was not subscribed by any person, but contained the name and address of the appellant's attorney indorsed on the back -- held, not an absolute nullity, but that an amendment should be permitted to supply the omission by virtue of N. Y. Code Civ. Pro., 8 3049. (Citing Burrows v. Norton, 2 Hun, 550; Sherman v. Wells, 14 How. Pr. 522; Jackson r. Fassitt, 33 Barb. 645). Gutbrecht v. Prospect Park & C. I. R. R. Co., 28 Hun, 497.
Prior to the amendment of N. Y, Code Civ. Pro., $ 3046, in July, 1882, so as to require an actual subscription of the notice of appeal, it seems that a notice not subscribed, but indorsed with the name and address of the appel. lant's attorney, would be suflicient. Id.
36 Smith 1. Kerr, 49 Hun, 29, 1 N. Y. Supp. 454, 15 Civ. Pro. 126 (offer of judgment which party or attorney must " subscribe"; Code, 8 740), Pelton t'. Ottawa Supervisors, 52 Mich. 517, 18 N. W. Rep. 245, 17 Repr. 657, and cases cited (under statute requiring " notice in writing” to be posted).
37 See paragraph 100, on p. 125 of this volume; N. Y. Gen. Rules of Practice No. 10. Either by subscription or indorsement; both are not required by the rule. Falker v. N. Y., etc., R. Co., 100 N. Y. 86, 2 N. E. 628.
38 U'nder the Wisconsin statute, L. 1875, chap. 86, which did not require the notice given to a town of an injury caused by a defective highway, to be signed by any person - where such a notice was served by the injured party in person, the fact that the signature of his attorneys thereto did not describe them as such attorneys, is immaterial. The service by the injured party in person took the place of signature. Teegarden v. Town of Caledonia, 50 Wis.
delivery is not presumed; nor is it enough to dispense with signature that other papers such as usually accompany the notice were signed.39
5. Address or direction.]-A notice should be addressed to the party to be charged thereby, unless he has appeared by attorney, in which case it should be addressed to the attorney, as attorney for him. The question whether notice may be served by or upon the attorney of record after judgment, or whether the judgment is deemed to terminate the attorney's authority, is one which relates to other proceedings as well as notices, and may more conveniently Le considered in connection with the subject of service. 40
The address is a material part of a notice, 41 as circumstances may justify one on whom a notice is served without being addressed to him — particularly if it be addressed to others — in inferring that it was not intended for him.42
An ambiguity in address is subject to the same rules as one in the terms of the notice.
6. Original or copy served.]- If the person served is required to take some affirmative step upon the faith or authority of the notice, it would seem that he should be put in possession of the original. Such a notice in an action as an offer of judgment has been held properly served by copy;43 so, too, of a notice of claim preliminary to action.
39 The notice of an appeal from a justice of the peace must be signed by the appellant, or some person authorized by him, or, it not being so signed, the record must show that the notice was presented to the justice by the appellant or agent. Accordingly, where the affidavit and undertaking were signed, the court held that it could not be presumed from this that an unsigned notice, written on the same sheet, was given by the appellant, and the order denying the motion to dismiss the appeal was reversed. Evangelical, etc., Gemeinde v. Koehler, 59 Wis. 650.
40 See Article XXI of this chapter, post.
41 A notice properly served, and retained, is not ineffective or rendered nugatory because omitting the name of one of the firm of attorneys. Falker v. N. Y., etc., R. Co., 100 N. Y. 86, 2 N. E. 628.
42 Where a notice of proceedings to lay out a highway was addressed to J. and H.," heirs of P.,” and inclosed in an envelope addressed to L., who was a grantee of J. (J. being a devisee of P.), held that L. had sufficient notice. Lawrence r. Nahant, 136 Mass. 477. See paragraph 102, p. 126. A notice to a firm of attorneys is not vitiated by a failure to address to all its members. Falker 1. N. Y., etc., R. Co., 100 N. Y. 86, 2 N. E. 628.
43 Smith v. Kerr, 49 Hun, 29, 1 N. Y. Supp. 454, 15 Civ. Pro. 126.
44 Soper v. Greenwich, 48 Adp. Div. 354, 62 N. Y. Supp. 1111 (notice of canse of action arising from city's negligence); s. P., Kelley v. Syracuse, 10 Misc. 306, 31 N. Y. Supp. 282 (notice of lien under city contract).
7. Vecessity of acting through attorney.]– In general, formal notices in the cause must proceed from and be served on the attorney of record, if there be one.45
The exceptions to this rule arising by reason of the cessation of authority after final judgment, or where an attorney cannot be found, will be more conveniently stated in connection with service of papers.
8. Notice to several united in interest.] — The rule that where several persons have a joint interest, notice to one is notice to all, does not apply to notices of legal proceedings;46 but notice should be given to each, if within the State, 47 unless they have appeared by attorney. If not, and if part of them are without the State, the court can direct as to the mode of giving notice to such.48
Where several have appeared by one attorney, or one firm of attorneys, one notice served on the attorney or firm is enough.
9. Date.]— The time of service is the real date of a notice; and the fact that a date is not written upon it, or that it bears a wrong date, such as Sunday,49 does not vitiate it if the error does not mislead nor alter the legal construction as it might if the notice were expressed as running so many days from the date.60
45 Halsey r. Carter, 29 N. Y. Super. Ct. 535; Griffith v. Gruner, 47 Cal. 644. See Article XXI on SERVICE.
There is a class of cases where the requirement of notice from a particular person in transactions involving forfeitures is held to require the exercise of his personal judgment, so that he cannot delegate the use of his name to another, to give such notice. See Payn v. Mutual Relief Society, 17 Abb. N. C. 53.
Notice need not be directed to the attorney as such if it appears that he is in fact the attorney of record. As where notice of the taking of a deposition was addressed to the attorneys at law, by their firm name (without stating that they are attorneys at law), by whom the declaration was filed, it will be presumed, in the absence of any denial on their part, to have been addressed to them in the same character in which they filed the declaration. Motion to suppress accordingly denied. Reese v. Beck, 24 Ala. 651.
In some instances service of notice (as of appeal) is required to be made on the attorney. Abrahams v. Stokes, 39 Cal. 150 ( where an appeal was dismissed because the notice was served on the plaintiff and not on his attorney of record); S. P., Tripp v. De Bow, 5 How. Pr. 114.
46 Thus service of process by leaving at residence, requires two copies for joint defendants, though both dwell in the same house. Bugbee r. Thompson, 41 N. H. 183; s. P., Rogers v. Buchanan, 58 id. 47; McConnell v. Stettinius, 7 Ill. 707.
47 Matter of Cohen, 2 How. Pr. (N. S.) 523 (notice to assignors for benefit of creditors).
48 16. 49 Taylor v. Thomas, 2 N. J. Eq. 106. 50 See Chase v. Hogan, 19 N. Y. Super. Ct. 431.