Hillhouse v. Dunning

Hosmer, Ch. J. The act of May 1823, (p. 27.) provides for the revision of cases, by motions in error, and empowers the court to allow the motion, if the party moving shall give sufficient security for prosecution. The contest between the parties is merely this. The plaintiff in error insists, that the law requires an allowance of the motion expressly, after bonds have been given; while the defendant contends, that the allow mce need not be express ; that it is an act of the court prior to the reception of bonds ; and that the act of taking bonds, by implication, is an allowance of the motion. The rec >rd of a court, is the act of the court; and the clerk is merely a recording officer. If there appear any mistake of the clerk, in making up the record, the court will direct him to amend it ; and in this, as well as in his other entries, he is entirely ministerial. From this it follows indisputably, that the bonds given in court are the act of the court, and that the clerk is only the amanuensis. When the plaintiff gave bond before the superior court, it was not taken by the authority of the clerk, but by the order of the court. This being admitted, the plaintiff insists, that no implication of a precedent allowance of the motion results from it, as the statute has enjoined, that the recognizance shall first be given, and that after this, the court may deliberate on the motion and allow it. This inversion of the natural order of events and the known familiar rule of practice, is supposed to be founded on the expression of the statute, which authorizes the allowance of the motion, if security shall be given. The remark is obviously a hypercriticism. The act in question puts the allowance of the motion entirely on the opinion of the judge as to its merits, without directing the order of proceeding. By allowing the motion, the law merely intends, that the judge shall-authorize the transmission of the record ; taking care, however, to secure [142] the adverse party from damages, by exacting a bond for his security Not a solitary reason has been, or can be, given, why a recognizance should be taken before the allowance of a motion It is sufficient that security is taken by bond, before the transmission of the case to the court of revision. Words are always, if possible, to be construed in avoidance of absurdity, and in reference to their subject matter. On the just application of these principles, every seeming difficulty vanishes. It would be most palpably absurd for a court to require the entry of a recognizance, and, as ancillary to it, to determine the amount of the bond and the sufficiency of the surety, and after all this hypothetical procedure, to settle the question whether the motion shall, or shall not, be allowed. The natural order of proceeding, dictated by good sense, is, first to allow a motion, and then it is early enough to take a bond of recognizance. This course is prescribed by convenience and common sense. Nor can any reason be discerned for the supposed requisition of the law, that an act in its nature posterior, and necessarily so, should have a priority given to it. The law is fully observed, when there is an allowance of a motion, and a recognizance for the security of the adverse party ; and it is unreasosable to believe, that the legislature intended to prescribe the order in which these acts should succeed each other. When the subject matter is considered, this reasoning is irresistible. It is well known, as a matter of practice, that the taking of a bond, in cases of error or appeal, is the last act of the court; nor with common decency can it be supposed, that the legislature was unacquainted with this notorious fact The bond is never taken until a writ of error or an appeal is allowed ; and hence the allowance is clearly implied from receiving the bond. The analogies on this subject are numerous. In all appealable cases, the court is enjoined to allow the aggrieved party an appeal; but the allowance is seldom expressed on the record. In general, the party appeals; a recognizance is taken ; and from this act the allowance is implied. No writ of error is signed until after a careful perusal and allowance by the judge. But the allowance is never expressed. It is an implication arising from the judge’s signature. On the same principle, it was determined, in The Eagle Bank v. Smith and Parmelee. 5 Conn. Rep. 71. that the allowance [143] of a motion for a new trial, on the ground that the verdict was against the evidence, implied an opinion of the judge that such was the fact. It certainly is no overstrained presumption, that an act in its nature and in practise posterior to another, should imply it; and more particularly, when the posterior act is useless and nugatory, if the prior act does not exist I, then, with entire satisfaction, come to this conclusion ; that the motion in error was allowed, and is so proved to have been, by the taking of the recognizance ; and I know, that the latter is always the last act of the court. Peters, J. was of the same opinion.