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To be sufficient to act upon, it also should state evidence of the facts, or be accompanied therewith, should be signed by the petitioner, or his agent or attorney, and be verified.67 These requisites will be considered after adverting to the two classes of petitions, and the distinction between a petition, and a bill or complaint, on the one hand, and a motion on the other.
2. Two classes of petitions.]— In present practice petitions, thus properly so called, are presented either in:
1. Motions in a cause already commenced,68 or with immediate reference to a cause about to be commenced, or,
2. Independent special proceedings allowed to be had in some cases, without action or formal writ or process.
These, though in form much the same, are essentially different in effect in several respects.
II. PETITIONS AS MOTIONS IN THE CAUSE. 3. Motions on petition distinguished from other motions. ]The characteristics of motions have been already stated. The substantial distinctions between motions made on affidavits only, and those made on petition with or without affidavits, have nearly all disappeared.69 Indeed, it is now so common for an attorney to add a prayer for relief in his affidavit, when making one for the purposes of a motion, that many affidavits are petitions even in form, except in lacking a formal address.
67 The court ought not to act on a petition of a nonresident, verified only by the attorney who swears to authority. Such authority should be of a eharacter which will not disappear at attorney's death. Estate of Stephani, 75 Hun, 188, 26 N. Y. Supp. 1039.
es See Maitland r. Gibson, 79 Fed. Rep. 136; Codwise v. Gelston, 10 Johns. 591.
In Hentig v. Page, 102 U. S. 29, the Circuit Court, in a foreclosure suit, had appointed a receiver of the rents and profits of the mortgaged land, and ordered that all persons who had come into the possession thereof pendente lite should surrender it to him on his demand. On their refusal to do so, a krit was issued commanding the marshal to eject them. They thereupon addressed a petition to one of the judges, praying that the writ be revoked by the court. Held, that an appeal does not lie from his order at chambers, denving the petition. The reason is that the appeal was not from a final decree in a “case of equity." Said Waite, C. J.: "The petition on which the order was made was in reality nothing more than a motion in the original suit by the appellant, with leave of the court for a recall of the writ of assistance. It certainly is not a bill in equity, for it names no parties de
The differences in legal effect that are still occasionally im. portant, are the following:
1. Where a statute or rule of court authorizing a proceeding prescribes petition as the proper method,"o care should be taken to adopt that method, instead of moving on affidavits only; but if the persons proceeded against appear without objecting in the court of first instance, an error in this respect is amendable, and, whether amended or not, may be disregarded when first objected to in an appellate court."
2. Where the inquiry to be made is collateral to the cause, and involves a complex state of facts such as to render opportunity for formal answer raising issues desirable, and immediate decision is not urgent, proceeding by petition is preferable, and favored by the courts.72
fendant and prays no process. It is addressed to one of the judges of the court, and not to the judges or to the court; and the appellees were brought in on a rule to show cause in the pending suit, and not by an original writ."
70 The principal cause of such requirements, beside the substantial differences stated in the text, was that previous to the merger of law and equity, as some of the powers of the court of equity were successively given by statute to the courts at common law, the same form, by petition, was often prescribed by the statute. For instance, the Code substitute for the former Bill for Discovery and Inspection, provides that the application be founded upon a petition. N. Y. Code Civ. Pro., § 805. Compliance with this provision is. required, and an order for a discovery based upon an affidavit will be reversed. Lee v. Winans, 99 App. Div. 297, 90 N. Ý. Supp. 960.
71 But see case cited in preceding note.
72 Of this class are seeking instructions to receivers, or as to funds in court, and the like. On the other hand, motions for arrest or injunction, and the like, however complex the facts, are not made by petition, with the sole exception of ne ereat in some jurisdictions.
The following authorities, though no longer controlling, illustrate more fully the traditions which still direct the choice of experienced practitioners.
Bill filed by creditors of a bankrupt to set aside certain conveyances previously made by him for fraud. Decree of sale, and money paid into court The petitioner (a judgment-creditor, whose judgment was a lien on part of the land sold, but not a party to the above suit) applied to the court, entitling his petition in the cause, asking that his judgment might be paid out of the money in court. The chancellor dismissed the petition on the ground that it was wrong to proceed by petition. This decision was overruled by Kent, Ch. J., who held that petition was a proper procedure, because it referred to some collateral matter to a suit in court. Codwise v. Gelston, 10 Johns. 507 (1812).
“ Petitions may be presented either in a cause or in a matter over which the court has jurisdiction under some act of the legislature or other special authority. With respect to applications made in a cause, there does not appear to be any very distinct line of demarcation between the cases in which they should be by motion and those in which they should be made by petition; the practice being generally regulated by the circumstances of each case. But where the application is upon some collateral matter referring to a suit in court, a party may be relieved upon petition." 1 Barb. Ch. Pr. 579.
Motion on behalf of a solicitor of one of several parties to a cause to discharge an order for taxation of the costs of taxation (allowed on reducing
3. In addition to these, it was formerly often held that a person not a party must proceed and be proceeded against by petition.13 This was on the theory that one not a party must be made a party, or must be proceeded against by original petition and a new process.
his bill by taxing), and for a retaxation. The question was not between party and party, but between one party and his solicitor. The circumstances on which the solicitor relied to establish his right to a retaxation were somewhat complicated. Held, that inasmuch as the master's certificate taxing the costs appeared to be regular, the solicitor ought to have applied by petition, stating particularly the grounds of his complaint. Motion dismissed without prejudice. Attorney-General v. Nethercoat, 3 Beav. 297.
“ Interlocutory applications, when made viva voce to the court, are called motions; when they are made in writing, they are called petitions. There does not appear to be any very distinct line of demarcation between the cases in which they should be made by motion and those in which they should be made by petition; but, as a general rule, where any long or intricate statement of facts is required, the application should be made by petition; while in other cases a motion will be sufficient.” 2 Dan. Ch. Pr. 1587.
“ When the nature of the application to the court requires a fuller statement than that which can be conveniently contained in a notice of motion, the proper course is to present a petition; thus, generally, an order to pay a sum of money out of court must be obtained by petition and not on motion. And the application for the retaxation of a solicitor's bill [between solicitor and clients should be by petition, stating particularly the grounds of complaint, and not by motion." 1 Smith's Ch. Pr. 126. (It is interesting to note that an amendment of 1899 to section 66 of the New York Code so far preserves this former chancery requirement when determining a controversy between solicitor and client, as to require that the application be founded upon petition.)
73 The earlier cases on this distinction are as follows:
On the hearing of a motion it was objected that the person on whose behalf the motion was made, not being a party to the suit, could not move in it, but ought to have presented a petition. The vice-chancellor, however, ruled that as the title of the applicant was stated in the notice of motion, and no long statement of facts was required to show the title, the application might be made on motion. Jones v. Roberts, 12 Sim. 189.
A purchaser at a master's sale, under decree of foreclosure, transferred his bid to the plaintiff, who filed his petition for the court to direct the master to transfer to him. The purchaser objected to being made liable to the jurisdiction of the court in this summary manner. The court said that the answer to this is the familiar principle that any one who interferes pendente lite with the subject-matter of a suit in equity, submits himself to the jurisdiction of the court, to be exercised by petition or motion in the original suit. The decree of the vice-chancellor directing a conveyance was affirmed. Proctor v. Farnam, 5 Paige, 614.
S. P., Requa v. Rea, 2 Paige, 339. This was an application on the part of the complainant in the original bill, to set aside a master's sale of mortgaged premises, on a decree of foreclosure, on the ground of fraud in the sale. It was directed against the purchasers, who were not parties in the original proceedings. The court held that “where a person becomes a purchaser under a decree of the court, he submits himself to its jurisdiction in that suit as to all matters connected with the sale."
Dwight's Case, 15 Abb. Pr. 259 (1862), was an appeal from an order setting aside a sale on execution and directing that a new execution issue. Dwight purchased land at sheriff's sale under executions against Tallmadge. He was
Although this doctrine is now wholly obsolete in New York, and the courts have clear power to proceed against a person not a party, even for contempt, by a motion"4 in the cause, yet where the person is a stranger to the cause, not having already been served with papers, nor otherwise legally made cognizant of it, a petition and order to show cause thereon is preferable, as giving more adequate and intelligible notice.75
4. The petition requires a sworn allegation by the moving party himself, or his proper agent, whereas a motion on ordinary notice requires only affidavits of evidence and a notice proceedling from the attorney in virtue of his general power in the cause. For this reason sometimes the court, and sometimes tha attorney, prefers that the application should be made by petition.
This is the more important in those cases where motions without written notice are sometimes made.76
not plaintiff or defendant in any of the suits against T., but claimed to be a creditor and have an interest in the judgments. After the sale he discovered a previous conveyance by T. of the land. He moved to set aside the sale, etc. Opposed on the ground (among others) that not being a party to the suits in which the execution issued, he could not proceed by motion. The court said that there was no reason why a person, not a party on the record, addressing the equitable summary jurisdiction of a court of law, should not obtain relief. The order was affirmed.
Gould v. Mortimer, 16 Abb. Pr. 448, was an action by owner of equity of redemption to set aside a sale under decree of foreclosure of mortgage. The plaintiff (grantee of mortgagor), not having recorded his deed, was not made à party to the foreclosure proceedings. The question arose on a motion for a new trial. The court said it was well settled that a bill in equity would not lie in favor of a party to a suit to set aside the sale, because his remedy was by motion. The grantor of the plaintiff was a party, and the plaintiff was in privity with him, and therefore bound by the decree. Consequently he had a right to move to set the sale aside, though not a party. The motion was denied.
74 See paragraphs 8 and 9, page 74 (above).
75 Application by a person to be made a party aefendant, based upon petition, and entitled as though in a separate special proceeding, was considered a sufficient basis for an order allowing him to intervene in Matter of Mason, 12 Misc. 77, 33 N. Y. Supp. 43. The petition should, however, have been entitled, and the order entered, in the action.
76 In Gass v. Stinson, 2 Sumn. 605, the cause, being before the master under an interlocutory decree, an order was made on oral application to the master to take the depositions of witnesses to establish the incompetency ol witnesses whose depositions were before the court. The question arose on a motion to supersede the order on this and other grounds. Story, J., held that the application should have been by petition, in writing, verified. Order superseded.
The English equity practice is thus stated by Lubé: “Motions when they are not for a common order (which are motions of course), can only be made upon notice given to the adverse party two days before, inclusive, and afida vit filed for the service thereof on the clerk in court. The notice, however, specifies no more than the names of the parties and the object intended to be applied for; whereas a petition sets forth the ground work of the application,
In English practice, and in some other jurisdictions, there is sometimes a preference on the ground of privacy, particularly in equity causes, petitions being commonly referred without the subject being stated in open court.
4. Rules applicable.]— A petition used as a motion in the cause should be entitled, and the rules applicable to affidavits heretofore stated78 apply to it; for it is nothing more than an affidavit by the party with a prayer for relief, and a formal verification preceding the jurat. It is not essential to pray for an order to show cause, though if it be desired in order to permit short notice of the motion, instead of giving the usual length of notice, the reason for short time must be stated.
It does not need the signature of counsel, but must be subscribed or indorsed by the attorney serving it with his name and address, or annexed to a notice or other papers so subscribed, or indorsed, and served with it.
In respect to filing, and the proceedings on the hearing, and the order made thereon, the rules stated"9 in respect to motions and orders apply.
5. Prayer.]— The prayer for relief may be in the alternatives when necessary.
6. Signature.] — The court may properly refuse to act on a petition if the verification be not signed. The principles which
and, when filed, becomes matter of record. Wherever, therefore, the nature of the case is such that the court or adverse party ought to be put in previous possession of the grounds of the application, or that the reasons for granting the order should remain recorded, the application should regularly be by peti tion and not by motion.” Lubé's Eq. Pl. (Amer. ed.), p. 54.
77 Petitions which relate to a proceeding pending should be entitled in it, or so refer to it with sufficient distinctness, that perjury might be assigned. But original petitions need not be entitled. De Zeng 1. Mann, 4 Ch. Dec. 22; Stafford v. Brown, 4 Paige, 360. Omission is immaterial when the allegations of the petition show clearly the action in which it is presented. Sewall v. Brainard, 38 Vt. 364. And entitling the petition as though in an independent proceeding was disregarded, as not affecting a substantial right, in Matter of Mason, 12 Misc. 77, 33 N. Y. Supp. 43.
78 See Article III, p. 11 of this volume.
So In Robertson v. Robertson, 3 Paige, 387, 389, the chancellor, reversing the decision of the vice-chancellor, says: “Although the application to dismiss the bill of the complainant, on account of the irresponsibility of the next friend, was not correct in point of form, yet, as the prayer of the petition was in the alternative, the vice-chancellor should have granted the proper relief upon the facts presented. He should have ordered the proceedings to be stayed on the part of the complaint until a responsible person should be substituted as next friend, or security for costs given.”