Pratt v. Rice

By the Court, Whitman, J.: On the nineteenth of March, 1866, a decree of foreclosure was rendered in the district court against appellants, who had duly ap [126] peared, and in favor of respondent. Upon the order of sale issued in the case, no return was made. On the sixth of April, 1871, ex parte application was made upon affidavit and certain entries upon the clerk’s docket, for the docketing of a judgment nunc pro tunc against appellants. Upon this motion it became necessary for the court to hear and decide several questions of fact. The order prayed was granted. Upon the twelfth of April, 1871, appellants moved, on notice,-to vacate the order thus made, upon the grounds that it was made without notice, and without sufficient showing of facts. By the Practice Act of this state, “ after appearance, a defendant or his attorney shall be entitled to notice of all subsequent proceedings, of which notice is required to be given.” Stats. 1869, Sec. 499. There is nothing further in the Practice Act touching the question of notice in motions of the nature of the one under consideration; it is neither specially required nor excused, nor does there appear to be any rule of court upon the subject; consequently, reference must be had to generally received practice. It is said by Mr. Daniell that “ a motion is either of course, that is, for an order which, by some standing rule or known practice of the court, may be granted, without hearing both sides; or, secondly, special — i. e., for an order which is not a mere matter of course, and can only be granted under special circumstances, or upon notice-duly served upon the opposite party. A motion of course requires no notice. * * A special motion is one which it is not a matter of course to grant, but which the court, in the exercise of its discretion, may, on the facts established in support of the application, either grant or refuse. Motions of this description may be made either ex parte, or upon notice. When they are made ex parte, as in the case of motions for a ne exeat regno, or for an injunction to stay waste, etc., they must be supported by the affidavit of the party applying for them, and by such collateral affidavits as may be necessary to make out a sufficient case for the interference of the court. “ The object of motions of this nature is generally to prevent the performance of some act which, if performed, might be productive of irreparable injury; and it is therefore desirable that the party [127] affected by it should not have any previous intimation -of the intention to apply to the court to restrain him. Where there is no danger that the object of the motion would not be defeated, if notice were given, they will not be permitted * * and special applications concerning the proceedings in the cause, not regulated either by the general orders or by any clearly defined rule of practice, must almost always be made upon notice.” Dan. Oh. 2 ed. 1854-5. The reason of the rule is against the practice pursued in this case; this was not an order of course. There was no cause for haste or concealment; facts were to be found, in the ascertainment whereof the appellants were deeply interested; a record of the court which was to bind them was to be substituted after a lapse of years, mainly, if not entirely, from the memory of one party ; certainly, they had the right to know and see that this "was correctly done, if it could be done at all. There is no reason in favor of the course pursued, and many against it; on its face, and unobjected to, it is, to say the least, extraordinary and irregular; and when objected to, it must be set aside. The order of the district court is reversed.