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of a cause it may dismiss the cause of its own motion or on the motion of a defendant whenever the facts clearly appear. 46

A kindred exception to the same rule, which exists in the case of a motion to stay an action which is clearly vexatious, is noticed under Stay OF PROCEEDINGS.

17. Motions against void proceedings.] — If an order or judgment, or a clause therein, is void for want of jurisdiction (as distinguished from an order irregularly or improvidently made), the party may appeal from it; 47 or may disregard it; 48 or may move to vacate it; 49 or he may make a new motion as an independent application for the proper relief in the matter it touches, and in determining such application, the invalidity of the prior order may be determined incidently, without appeal therefrom. So But the latter course should not be resorted to where the motion could be denied on the idea that it was a desire to appeal indirectly to another judge than the one who made the obnoxious order.

18. At what stage motions may be made; before service of process.] — A motion is premature before an action is pending, for it is the commencement of the action that gives jurisdiction.51 Some exceptions to this rule will be noticed hereafter.

This rule of course does not apply to such proceedings as are commenced not by process, like civil actions, but by application to the court, as in mandamus,52 etc., or petitions by trustees.53

46 Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315 (action dismissed on motion, although issue was joined and the trial day fixed).

Cumberland Coal Co. v. Sherman, 8 Abb. Pr. 243 (motion to set aside summons and complaint granted, for want of jurisdiction in a case free from doubt).

Crowley v. Royal Exch. Shipping Co., 2 Civ. Pro. R. (Browne) 174 (motion to set aside summons and complaint for want of jurisdiction of a foreign corporation, granted because “the facts are undisputed and the law certain”).

Compare Atl. & Pac. Tel. Co. v. B. & 0. Ry. Co., 87 N. Y. 355, 358 (where the court say that “ perhaps in a case free from doubt, the court might dismiss the whole proceeding on a motion to set aside the service of the summons " for want of jurisdiction, “but the regular mode of raising the question is by demurrer or answer").

47 Kamp v. Kamp, 59 N. Y. 212.
48 Spencer v. Barber, 5 Hill, 568; Hunt v. Wallis, 6 Paige, 166.

49 Kamp v. Kamp, 59 N. Y. 212; Matter of Niagara Falls, etc., Co., 121 N. Y. 319; Hughes v. Cuming, 165 N. Y. 91.

50 Hughes v. Cuming, 165 N. Y. 91.

51 Kattenstroth v. Astor Bank, 2 Duer, 632 (motion for receiver denied because order to show cause was served before summons).

52 See Code Civ. Pro., & 2070.
53 See p. 39 of this volume, and see PETITIONS.

54 but the


And in the case of actions, exception is now made in respect to those in which a provisional remedy is sought, for there the court has jurisdiction from the time of granting the provisional remedy, subject of course to a defeat of jurisdiction if the conditions of service of process prescribed by law are not performed.

And in any case if a summons has been prepared and issued by the plaintiff's attorney for service, orders necessary to secure its service may be made on papers entitled in the action; and if an order for substituted service has been made, the action may be deemed pending, so that other motion papers may be so entitled.

19. after judgment.] — The power of a court of superior jurisdiction does not entirely cease upon rendition of its judgment;

power of the attorney of record for a party may. The consequences affecting the mode of moving after judgment, are stated in connection with NOTICES and SERVICE.

20. Promptness.] — Motions, success in which will have the effect to delay the cause, and particularly motions to set aside proceedings for irregularity, must be made promptly. formerly a maxim with the courts that motions of the latter class must be made at the first opportunity, and before the moving party had taken any other step in the cause. The requirement of promptness is now recognized to be one resting in the discretion of the court or judge, and excuse may be shown ; 56 but unreasonable delay, though not prolonged, may be fatal if adverse party show that he has been prejudiced thereby.57

It was

21. Taiver of motion, by inconsistent proceeding.] — An appeal from an order or judgment, and a motion to set it aside

54 Hatch 1. Central Bank, 78 N. Y. 487; but see paragraph 10, supra, and title JUDGMENT.

55 Axt v. Shankey, 8 N. Y. Supp. 803; Persse, etc., Paper Works v. Willet, 14 Abb. Pr. 119; Low v. Graydon, Id. 443; Strong v. Strong, 1 Abb. Pr. (V. S.) 233; Matter of Peekamoose Fishing Club, 8 App. Div. 617; Matter of Flushing Ave., 101 N. Y. 678.

If the motion is addressed to the merits, mere delay will not usually affect. Swezey r. Bartlett, 3 Abb. Pr. (N. S.) 444. Certain motions to relieve from judgments must be taken within periods fixed by statute. Code Civ. Pro., $$ 1282, 1290; Corn Exch. Bank v. Blye, 119 N. Y. 414. See title, JUDGMENT.

If a motion is founded on want of jurisdiction, delay does not waive. Titus r. Relyea, 8 Abb. Pr. 177; Bulkley v. Bulkley, 6 id. 307.

56 Lawrence v. Jones, 15 Abb. Pr. 110.

57 People ex rel. v. Rice, 26 N. Y. Supp. 345. The objection of laches need not be raised by a motion to dismiss the motion. Matter of Van Ness, 21 Misc. 249, 47 N. Y. Supp. 702.

when allowable, are concurrent remedies. Both may be prosecuted at the same time,58 although if either be successful the other may cease to be necessary. Therefore taking an appeal does not necessarily waive a pending motion to vacate," and moving to vacate or for leave to renewe does not necessarily waive an appeal. But renewing a motion has the effect of asking an opening of the decision and a rehearing of the original motion; actual renewal, therefore, does waive a pending appeal from the original decision; and the party should be left to proceed with his motion, and if it be denied on the rehearing, he may appeal from the order thereon.61

22. Several objects.] — Two consistent objects may be combined in the same motion if convenience be thereby promoted; 62 and two objects which are not both allowable together may be asked in the alternative. 63

23. Several actions.] — Where there are several similar actions in the same court between the same parties, and it is proposed to make a motion affecting all, as for instance that they be consolidated, or that all but one await the trial of that one, one motion may be made, and one set of motion papers served, entitled in all the causes, unless different places of trial require a different course.64

The same course may properly be pursued if it is proposed to apply simultaneously in each action for similar but separate

58 The most familiar instance of this is the concurrent appeal from a judgment and from an order denying a motion to set aside the verdict and for a new trial. Kerr v. Dildine, 14 Civ, Pro. 176, 15 N. Y. St. Rep. 616 (right to appeal from denial of motion to vacate judgment is not lost by appealing from judgment also).

59 Ciumpha 1". Whiting, 10 Abb. Pr. 448. Though it may waive the right to move thereafter. Mayor, etc., of N. Y. v. Lyons, i Daly, 296, 300.

60 Belmont v. Erie Ry. Co., 52 Barb. 637.

61 Harrison v. Neher, 9 Hun, 127; Apsley v. Wood, 67 How. Pr. 406 (dismissing appeal from order because appellant had renewed the motion pursuant to leave, and it had been again denied). Harris v. Brown, 93 N. Y. 390 (same ruling, although no leave to renew was obtained).

62 People v. McCumber, 18 N. Y. 315 (joining motion to strike out one defense as sham, and for judgment on others as frivolous, encouraged).

63 Common practice. But in Kavanaugh v. Commonwealth Trust Co., 45 Misc. 201, 91 N. Y. Supp. 967, the court considered that it was not proper practice to join a motion to make more definite and certain with a motion for a bill of particulars in the alternative.

64 And the party prevailing on the motion is entitled to the costs of one motion only. Hornfager v. Hornfager, 6 How. Pr. 13.


relief in each, as for instance to make the same amendment in each, or to stay proceedings in each, and upon the same grounds. Otherwise of motions affecting vital rights, as arrest.

Where a motion affects different causes in different ways, as for instance a motion to set-off judgments, or a motion by the plaintiff in a creditor's action impeaching proceedings in another action, the safer practice is to entitle the motion in both causes, putting the title of that in which the relief is sought first, and taking care, if they are in different courts, to state in the body of the notice which court will be moved.

The principle which governs in a contest as to whether a motion entitled in only one cause is sufficiently entitled, is, whether an order made in that cause will suffice. If so the notice should not be deemed objectionable for not including the title of the other cause. In the application of this rule it is not to be forgotten that the court, having power of amending its own process or records of its own motion, often exercises it in respect to the papers in an action not before it at the time, as, for instance, where, in an action for false imprisonment, an amendment is made in the execution or order of arrest under which the imprisonment was had ; 68 or where a prior judgment offered in evidence on the trial of a subsequent action in the same court is allowed to be amended in furtherance of justice.


24. Special appearance.] — A party who has not appeared generally in the cause, and desires not to appear, may nevertheless appear specially for the purpose of a motion to dismiss for want of jurisdiction,69 or to strike from the files a jurisdictional paper improperly there; 7o and if his appearance be expressly restricted to such purpose, it will not waive the jurisdictional objection."

25. What motions require notice.] — In connection with this subject, and before proceeding further, the question what motions may be made ex parte and what only on notice to the adverse

65 Id.
66 See Jackson v. Sheldon, 9 Abb. Pr. 127.

67 The few authorities in the books are scarcely reconcilable, and do not throw much light on the present practice.

68 Holmes v. Williams, 3 Cai. 98.
69 Tiffany v. Lord, 65 N. Y. 310.
70 Cleghorn v. Waterman, 6 Neb. 225, 20 N. W. Rep. 636.
71 See Chapter V, APPEARANCE.

party, needs attention. This question is to be determined by reference to the practice of the court, and to the statute or rule applicable to the proceeding.

In some jurisdictions many motions whieh elsewhere require notice, may be made ex parte, the right of the adverse party to apply to vacate being deemed a sufficient safeguard.

Under the Codes of Civil Procedure the general guides on this question are to inquire:

1. Whether there is any statute or rule giving the moving party a right to the order he applies for; if so, and if it in no way requires notice, it in effect authorizes the court to dispense with notice, and the application may be ex parte.

2. If no statute or rule expressly, or in effect, prescribes or dispenses with notice, the question is, whether the application is one which the adverse party has a legal interest in resisting; if so, a party who has appeared is entitled to notice. 72

3. An application not affecting a legal right, but addressed purely to the discretion 73 or to the favor 14 of the court, may be made ex parte, unless there is a regulation to the contrary.

4. If any doubt remains as to the application of these rules, it should usually be determined by the general principle that in every proceeding of a judicial nature both parties are entitled to an opportunity to be heard.15

72 See Matter of Salmon, 34 Misc. 251, 253, 69 N. Y. Supp. 215, 9 Anno. Cas. 464; Shaw v. Coleman, 54 N. Y. Super. Ct. 3; Henry v. Derby, 53 id. 125. If an order is improperly made ex parte, it cannot be upheld because the same order might have been made after notice given. Wheeler v. Emmeluth, 121 N. Y. 241.

73 Matter of Patterson, 4 How. Pr. 34 (application for leave of court that habitual drunkard might make will, notwithstanding appointment of committee, is properly made without notice to heirs presumptive).

74 Such as orders for time to plead and the like. Travis v. Travis, 48 Hun, 343; Condon v. Church of St. Augustine, 14 Misc. 181, 35 N. Y. Supp. 382. See Court Rule 37, as to applications on notice after one extension has been procured. Isnard v. Cazeaux, 1 Paige (N. Y.), 39 (otherwise of an appli cation for leave to sue as a poor person after action begun). Id.

75 People v. Tallman, 36 Barb. 222.

The following motions have been held to require notice to parties appear. ing and not in default:

Leave to prosecute in forma pauperis. Isnard v. Cazeaux, 1 Paige, 39.

Leave to sue receiver. Potter v. Bunnell, 20 Ohio St. 150 (holding notice to the receiver necessary, but notice to the parties at whose suit he was appointed not necessary).

*Leave to amend' summons. Luckey v. Mockridge, 112 App. Div. 199; Hewitt v. Howell, 8 How. Pr. 346.

Revival or continuance of action in name of a new administrator. Thayer v. Mead, 2 Code Rep. 18.

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