Brinkley v. . Brinkley

The Code, section 72, substitutes an order stating the questions of fact to be tried for a feigned issue as it then existed. Under the old practice a feigned issue might be directed at any time before judgment, and as well upon the motion of the court as upon application of a party. The power was sometimes exercised after trial and submission to the court. (Clarke, 580; McC. Y., 436.) The mode of taking evidence under the old practice may have furnished one reason for the exercise of the power which does not now exist, but the power itself is not abrogated. It is not restricted by the Code. Section 267 does not restrict it nor relate to it. That section requires the judge to make and file his decision within a specified time, but necessarily with the implied qualification that no other disposition is made of the case. It is competent for the court to order a reargument, to open the case for further proof, or to allow an amendment of the pleadings, or to direct a trial by jury or referee of some controverted question of fact, or to state an account and the like. The right of the court to exercise the powers theretofore exercised by the Court of Chancery in these respects was not aimed at. The section only provides for the form of making the decision and the time of filing the same. We concur with the opinion of BARRETT, J., in the court below. The order may operate oppressively upon the defendant in this particular case, but as the judge *Page 194 had the power to make the order, it is not appealable to this court. We cannot review the propriety of its exercise. The appeal should be dismissed with costs. All concur. Appeal dismissed.