CHAPTER 24.

APPEALS.

SECTION I.

APPEALS TO THE COURT OF ERRORS.

THE Court consists of the President of the Senate, the Senators, Chancellor, and Justices of the Supreme Court.(1) The whole number is 37. The Senators and Justices of the Supreme Court compose the court for the decision of appeals, the Senators and Chancellor for the determination of writs of error. Even under the present constitution the legislature has power to regulate the proceedings of the court. (2) This power has been exercised, and various provisions adopted, which will be noticed in their proper places.

Writs, and process of the court, shall be signed by the clerk, and tested in the name of the President of the Senate.(3)

Sessions of the court may be held at the capitol in Albany, at such times as the court shall, from time to time, direct, but not more than two such sessions shall be held during the recess of the legislature in any one year.(4) The court may hold the terms which shall be held in the interim of the sessions of the legislature, either in the city-hall at New-York, the capitol in Albany, or the academy in the city of Utica, as the court shall, from time to time, direct.(5) The governor has also power to change the place of meeting of the court, if he shall deem it requisite, by reason of war, pestilence, or public calamity, or

Members.

2

Process.

3

Sessions.

(1) Constitution, Art. 5, 1.

(2) By the Chancellor, 2 Wendell, 218.

(3) 2 R. S. 165, § 9.

(4) Ibid. 164. § 7.

5)) idbl. 8. §

Regulation of practice.

the danger thereof. And a similar power is given to the court after a session has commenced.(1)

By the 33d general rule of the court, in cases not already provided for, the practice of the court upon appeals shall be conformable to that of the House of Lords in England, when sitting as a court of appeals, until further order.

The right of appeal is, as a general rule, confined to the parties to the original cause. A person not a party to the record, though interested, will not usually be permitted to interplead by an appeal.(2)

This rule has, however, been relaxed in cases of a pressing nature.(3) A person who is party to the order, though not upon the record, may appeal; such as a purchaser under a decree, or a creditor coming in before the master to establish his claim.(4)

An appeal cannot be sustained by a mere volunteer for the benefit of another. It cannot be sustained by a person who cannot be injured by the alleged error of the judge, unless such person is the legal representative of a party who may be injured thereby.(5) No one can prosecute a suit in chancery, either

(1) 2 R. S. 291, § 98, 102. (2) Palmer on Appeals, 6. Corporation of Ludlow, &c. v. Greenhouse, 1 Bligh. N. Series, 73. Lord Powis, asserting that he was entitled to name the trustees of the charity in question in the cause, had made himself party to the appeal. It was declared by both Lord Redesdale and Lord Eldon, that the petition as to him ought to be dismissed, not being a party below.

(3) In Root v. Stuyvesant, Oct., 1838, the counsel of a mortgagee upon the property in controversy, and who was not a party, was heard upon the argument of an appeal. No objection, however, was made, and the case therefore is no decision. He presented a petition, setting forth his interests and submitted a written argument. Oliver v. Conway, May, 1817. Palmer's Pract. House of Lords, p. 6.

(4) Rider v. Earl of Gower, 6 Br. P. C. 148. Earl of Winchelsea v. Garretty, 1 Mylne & Keene, 253.

(5) Reid v. Vanderheyden, 5 Cowen, 720. The appellant had appealed from a decree of a surrogate establishing a will. There was a widow, and the appellant was a brother of the half blood, presumptive heir at law; but the wife was left enceinte. Before the appeal was brought the child was born. All the interest of the appellant was extinguished by this, whether the will, was sustained or defeated. He could not have claimed even if the child had died, and the appeal was quashed by the court of errors. Steele v. White, 2 Paige, 480.

by appeal or otherwise, who is not interested in the subject matter; although there may have been an interest when the suit was commenced, if such interest is terminated during its progress, his right to interfere further in the litigation is at an end.(1)

It cannot be objected, on an appeal, by a party who has no interest in the question, and is not guardian of an infant, that such infant should have been a defendant, instead of a complainant.(2)

An appeal can be taken by a party only from such parts of the decree as affect him; he cannot question another portion which does not bear upon his rights or interests.(3) Any one of several parties against whom a decree is rendered may appeal from it.(4)

6

of

The court has full power to correct and redress all errors Extent that may happen in the court of chancery.(5) Upon any order power on appeals. or decree being brought into this court by appeal, the court shall examine all errors that shall be assigned or found in such order or decree, and shall hear and determine such appeal, and all matters concerning the same; and shall have power to reverse, affirm or alter such order or decree, and to make such other order or decree therein as justice shall require.(6)

Much difficulty has arisen as to the orders from which an appeal will lie.

The very comprehensive language used in the old law has been omitted in the Revised Statutes. It was, "that all persons aggrieved by any sentence, judgment, decree or order, of the court of chancery, may appeal from the same, or any part thereof." There have been various decisions upon the extent of the right to appeal.

No appeal will lie from an order or decree entered by default.(7) The court will not, in such a case, entertain the appeal, although the same question may have been argued before the same court below in a different cause, and judgment pronounced, and written reasons delivered.(8)

7 What orders are appealable.

(1) Idley v. Brown, 11 Wendell, 238.

(2) Ibid.

(3) Ibid. 227.

(4) Johnson v. Johnson, 1 Dana, 366.

(5) 2 R. S. 166, § 24.

(6) 2 R. S. 167, § 27.

(7) Kane v. Whittick, 8 Wendell, 219, and the cases there cited.

(8) Henry v. Cuyler, 17 Johns. 469.

And so entirely does the court of errors carry out the principle, that its authority is only to revise and correct a deliberate decision of the inferior courts, that it will not permit a point to be made which was not made in the court below.(1)

It has been doubted whether an appeal would lie from an order dissolving an injunction. There are, however, instances of such an appeal.(2)

An appeal from an order refusing to dissolve an injunction has been expressly sustained.(3) And the supreme court was of opinion, that an appeal would lie from a decision refusing to grant an injunction.(4)

The judges who delivered opinions in Beach v. The Fulton Bank, expressed their sense of the difficulty of stating any definite rule upon the subject as to what orders were appealable. Marcy, J., said, that the test was not whether the order was one which was granted or refused in the exercise of the discretion of the court, because the court of errors, in repeated instances, has refused to restrict itself by this consideration, and in several cases has sustained appeals on orders emanating from the discretionary power of the court. He appears to consider, that no general rule had been, or ought to be declared; each case should depend upon its own characteristics, that the right was highly prized and valuable, and an unnecessary restriction upon its exercise would interfere with the administration of justice.

Sutherland, J., agreed substantially in this view. He stated, that whenever a motion is made to dismiss an appeal, the question should be, is the order such as materially affects the merits of the cause. If so, the appeal should be sustained, and the inquiry should be not into the merits of the cause, but on the abstract question, whether the order will probably affect the

(1) Ibid. See also Campbell v. Stokes, 2 Wendell, 137. See post, subdivision, 39.

(2) Young v. Grundy, 6 Cranch, 51. See this subject, fully examined by Marcy, Justice, in Beach v. The Fulton Bank, 2 Wendell, 230. The important case of Simson v. Hart, 14 Johns. 65, came up on an appeal from an order dissolving an injunction. So, the case of Martin v. Dwelly, 6 Wendell, 11. There was such an appeal in Wood v. Dwight, 7 Johns. C. R. 295, though I do not find that it was prosecuted.

(3) McVickar v. Wolcott, 4 Johns. Rep. 510. (4) Hoyt v. Gelston, 13 Johns. Rep. 140.

merits. The chancellor used yet more comprehensive language. "The true question he conceived to be, is the order such as that the party may be aggrieved by it. He could hardly imagine any order of the court which did not affect the merits of the case, either directly or indirectly. Initiatory orders might be an exception. Where a party is aggrieved, or may be aggrieved by an order, he has a right to appeal.”

In the subsequent case of Chapman v. Hamersley, 4 Wendell, 173, it was held, that an appeal would not lie from an order directing a sale of the property in litigation, and that the money be brought into court. J. Marcy said the order could not affect the merits, and related only to the preservation of the property. It had been asked for in the appellant's bill, to be made after the accounts were taken. The appeal was dismissed.

In Williamson v. Hyer, 4 Wendell, 170, an appeal was dismissed from an order refusing to rehear a motion for instructions to a master as to the examination of a witness. J. Marcy doubted if an appeal could lie from any order refusing a rehearing. The circumstances must be very strong. He also questioned whether the order refusing those instructions could be appealed from. The matter could come up on exceptions.

In Rogers v. Paterson, 4 Paige, 450, a cause had been remitted from the court of errors decreeing a transfer of securities and payment of money by a complainant to the defendant. The decree was entered. The complainant died. The suit was revived at the instance of the defendant against his executors. And the chancellor held that an appeal would lie from the order of revival.

The provisions of the Revised Statutes as to when an appeal shall be a stay of proceedings, do not, it is supposed, prevent the recurrence of the question as to what orders are appealable. The first series of sections [80 to 86 inclusive] relate to the bond or deposit requisite to make an appeal at all effectual, and to the conditions on which, (as to certain orders or decrees directing certain specified acts), an appeal shall stay proceedings upon such orders or decrees, and the subject matter embraced in them. These provisions of course show that all such orders are appealable.

Then the 87th provides that where the cause is for certain purposes, as the payment of money, &c., and an appeal is taken from any interlocutory order made in such cause, the court of