Opinion
January Term, 1868
Thomas J. Glover, for the respondent.
Upon an examination of the printed case, we find no cause for the reversal of this judgment.
The principal questions made arose on the motion for a nonsuit, upon the ground, first, that there was an absence of proof that an execution had been issued upon the judgment to the county of Richmond, and returned unsatisfied; and, second, that there was no proof that a certificate that the stock of the company had not been paid in had been filed in the county of Richmond. As to the first, I think it was not essential that an execution should be issued to and returned from two counties.
The certificate of the formation of the company was filed in New York, and, although it recites that the operations of the company are to be carried on both there and in Richmond county, it was sufficient that one execution was issued and returned.
The statute (S.L. of 1848, ch. 40, § 24) speaks of "an execution," and not of several executions. The statute was complied with when one execution was issued. It was enough that a fair and reasonable effort had been made to collect the judgment by execution. But it was unnecessary to issue more than one execution upon the plaintiff's judgment, as it appears that all the property in Richmond county had been sold and a receiver appointed.
As to the second objection, the proof would have been, at most, negative testimony, and, there being no evidence that the original certificate had been filed in Richmond county, the evidence that none had been filed in New York, established, at least, a prima facie case in this particular.
Beyond this, the evidence was not important.
The other exceptions taken do not present any serious questions for consideration, and none of them can be maintained.
The judgment should be affirmed.
The exceptions taken in the progress of the trial in this case are very numerous. A very large portion are exceptions taken by the plaintiff (the respondent), others by the appellant, and as to many others, the case does not state by which party the objections were made, or which party took the exception, by diligent and laborious examination, that can doubtless be learned. The case is full of objections, upon which no rulings appear, and, of matter of conversation or discussion in no sense relevant to any review of the proceedings. The case bears the appearance of being a copy of all the minutes of the stenographer, in the language and with the memoranda which he took on the trial. The charge of the judge is given in full, notwithstanding there are no exceptions taken thereto which bring it or any part of it under review. There does not appear even the apology for this, that it was made the ground of a motion for a new trial on the whole case, which might explain, though it would not justify, the presentation of the appellant's exceptions in this form.
With this gross violation of the rules of the Supreme and other courts (including the court in which the cause was heard on appeal), it was doubtless the province of the court below to deal. But we may properly say, as was said by BRONSON, Ch. J., in Price v Powell (3 Comst. 322), if it be proper to review such a case, every doubt should be turned against the party making the bill.
When, to this apparent effort to obtain the delay which an appeal would secure, and yet avoid the labor and expense involved in a proper performance of the work involved, there is added that the appellant fails to appear or to submit any brief or points, the inference is not extraordinary that he has himself no confidence that any ground exists for disturbing the judgment.
The twenty-fifth rule of this court was not intended to impose upon the judges the duty of acting as counsel for the party who does not appear to prosecute or defend, but to save to parties acting in good faith a further opportunity to present a printed brief, and save the court the loss of time formerly consumed in hearing motions to open defaults.
The judgment should be affirmed with ten per cent damages.
All concur.
Judgment affirmed.