
    George Bowman, plaintiff vs. William M. Tallman, defendant.
    1. A stay of proceedings, for the purposes of an appeal, is not violated, so as to enable the respondent to issue execution upon the judgment appealed from, by a decision of the appeal announced orally and entered on the minutes. To supersede the stay there must be a formal judgment, entered by the clerk.
    2. The issuing of an execution after such decision entered on the minutes, and before the entry of a judgment, is at most a mere irregularity, and as such. a motion to vacate it must be made promptly. Such a motion, made several months after the levy of an execution upon the defendant’s property issued upon the judgment entered, although he had appealed from it, to the Court of Appeals, was held too late.
    (Before Robertson, Ch. J. and Monell and McCunn, JJ.)
    Heard November —, 1864.
    Appeal from an order setting aside an execution and the levy made thereon.
    On the 22d of February, 1864, the plaintiff recovered a judgment against the defendant William M. Tallman. On the same day an appeal was taken by the defendant, from the judgment, to the general term of this court, and an undertaking to stay proceedings upon the judgment was filed. The appeal was argued in the general term, and on the 28 th of •May, 1864, the general term orally announced its decision, affirming the judgment. The entry in the minutes made by the clerk is as follows : After the names of the judges comprising the court, and the title of the cause, “ Judgment affirmed with costs.” On the 30th of May, 1864, the plaintiff issued an execution on the judgment of February 22, 1864. A formal order affirming the judgment was duly entered on the 31st of May, 1864, on which judgment of affirmance was entered on the 2d of June, 1864. On the 8th of June, 1864, the defendant appealed to the Court of Appeals, giving the proper undertaking to stay proceedings. On the 5th of October, 1864, the defendant gave the plaintiff notice of a motion that the execution be vacated and set aside “as irregular, illegal and void," on the ground that at the time of its issuing, the judgment had not been affirmed.
    The motion was granted at special term, and the plaintiff appealed.
    
      G. Bowman, plaintiff, in person.
    
      E. T. Gerry, for the defendant.
   Monell, J.

I am inclined to think that when the execution issued, the stay upon the judgment was not removed. The effect of giving the undertaking on the appeal to the general term, was to stay all further proceedings upon the judgment apealed from, (Code, § 339 ;) and an execution could not, regularly, issue until after the decision of the general term affirming the judgment. The mere oral announcement of a decision by the judges sitting in the general term, and the mere entry of such decision in the minutes of the clerk, is not such a judgment of the general term as will authorize action under it. I think a formal judgment which embraces the decision, and which becomes a permanent record of the court, must be entered by the clerk, and that such a judgment only, removes the stay of proceedings. (Lentilhon v. Mayor, &c. 1 Code Rep. N. S. 111. S. C. 3 Sandf. 721.)

There was, however, á valid judgment to support the execution. Its effect and operation and the right of the plaintiff to enforce it by appropriate process, was merely suspended, pending the appeal; and it was an irregularity, in the conduct of the proceedings to ■ enforce it, to issue an execution, until after judgment of affirmance had been duly entered. But it was an irregularity merely. Mr. Tidd (1 Tidd’s Pr. 512,) says : An irregularity in practice may be defined to be the want of adherence to some prescribed rule or mode of proceeding ; and it consists in omitting to do something that is necessary for the due' and orderly conducting of a suit, or doing it in an unreasonable time, or improper mannerand he mentions the entering of judgment before the time to plead has expired ; the service of an execution after its return day, " &c. &c. as instances of irregularities.

The long and uniform practice of the court has required that motions to vacate process or proceedings irregularly issued or taken in a cause, shall be made at the first opportunity after the irregularity has been discovered ; otherwise the irregularity will be deemed to be waived.

The execution in this case was issued on the 30th of May, 1864, and as the defendants’ attorney states in his affidavit, was on the same day levied on the defendant’s property. Tet the defendant omitted to take any steps to procure the execution to be set aside, until the 5th of October, more’ than four months after it was issued. I think he. was too late, and should be deemed to have, waived the irregularity ;• especially, as the judgment of affirmance was entered in due form on the 2d day of June. And the defendant appealed therefrom on the 8 th of June, with knowledge of the irregular issuing of the execution.

The order appealed from should be reversed.

Robertson, Ch. J.

The Code terms every direction of a court or judge .not included in a judgment “ an order (§ 400;) but it would be a matter of little practical consequence, whether the determination of a court at general term, upon an appeal from a judgment at special term, should be designated as an order or a judgment, were it not that the same section, (just cited,) requires an order to be entered in toriting. Only “ the final determination of the rights of the parties in action ” can be a judgment, which is required to be entered in the “judgment book ” kept by the clerk, ( § 279,) and to specify clearly the relief granted, or other determination of the action. (§ 280.) A copy of it is to form part of the “judgment roll,” along with the pleadings, verdict, report, exceptions, case, and certain other papers affecting it. ' (§ 381, sub. 3.) In case of a.judgment at general term, upon a verdict at special term, where directed to be subject to the opinion of the former, and in that case only, it being as reviewable. on appeal as if exceptions had been actually taken on the trial. (§ 333,) “ questions or conclusions of law, together with a concise statement of the facts upon which they” arise, are required to be filed with such judgment roll. (Id.) The general term is expressly authorised to render a. technical ■judgment only in such a case, and when exceptions taken at a trial are reserved to be heard by it in the first place. (§ ’265.) The Code recognizes the grant or refusal of a new trial by an order, (§ 11,) and extends the appellate jurisdiction of the Court of Appeals to such order as “ an actual determination ” by.the general term. (Id.) Although the determination of the Court of Appeals therein is termed distinctively a “ judgment.” (Id.)

These various provisions of the Code,, seem to make a decision of a court at general term, affirming or reversing a judgment of the same court at special term, according to the nomenclature of such Code, a mere “order.” The technical “motion” (§ 401, sub. 1,) disposed of thereby, (Id. § 400,) being an application ” to vacate the judgment, and grant a new trial. The judgment mentioned in sections 19 and 38 of the Code, probably, were intended to embrace every kind of decision; since otherwise less than the number of judges specified in suph section might grant or refusé an order for a new trial. In this case, therefore, the decision of the general term was a mere order, and should have been entered as such in writing, before it could take effect. It is not necessary; therefore, to consider its effect if it had been a judgment, arid merely orally announced. Such announcement would unquestionably, in such a case, authorize the reduction .of the decision to form and justify a settlement and allowance of its written record subsequently, although all the judges who made it' should then not be members of the court. And in such case, such record, when made, would relate back to the time of such announcement.

The stay of proceedings in this case was by statute, and not by a special order of the court. In the latter case, the defendant’s remedy might have been confined to a motion for an attachment for disobedience of such order. In the former it is irregular to proceed, and the proceedings may be set aside as void. The order at general term, affirming the judgment, at special- term, related back to the time of pronouncing the decision. The anticipation of it by issuing the execution was a mere irregularity; the levy of such execution on the- day it was issued "was notice of its issuing. I fully concur, therefore, in the views of my brother, Monell, in considering the right to move to set it aside waived, by five months delay in making the motion. The order appealed from should, be reversed, without prejudice to a motion by the defendant, to stay proceedings on suitable terms.

McCunn, J.

I agree, fully, with the chief justice, and with Justice Monell, that the order appealed from in this case should be reversed; but I differ with them, widely, in my reasoning, in arriving at this conclusion. I believe the theory or practice laid down by the learned counsel for the plaintiff is the correct practice.

The learned justice who heard the case below, misapprehended the fact, in assuming that no judgment roll was filed till June 2, 1864 ; for the judgment roll in the case was undoubtedly filed in February, 1864, and the execution fully refers to this judgment, and its entry. He was mistaken, therefore, in his reason for granting the motion. He evidently based it on the supposition that a new judgment had been entered up for costs, at general term; for he certainly did not refer to the original judgment, which was affirmed ; because to that judgment the execution, which the defendant is now moving to set aside, fully and completely refers.

The practice is well settled, that where a judgment is affirmed, it does not add .to or modify the original judgment; it remains as when entered up originally. The rule is simply to enter up a new judgment for the costs; so that, in fact, there are two judgments in the case — the original judgment, and the judgment for costs. Supposing no costs or disbursements had been allowed to either party, on this appeal, certainly no second judgment would have been entered. All that could have been done, under such circumstances, was to obtain from the clerk at general term, a certified copy of the order affirming the judgment; and the filing of that with the clerk of the court in which the judgment was first entered, is all that would be necessary. (2 Tiffany & Smith’s Pr. 153.)

This was all done by the plaintiff in this action; and this, I hold, was all he was required to do. After the court had determined the case, it must give effect to its determination as of that date, and all orders concerning the same must be as of that date. (Willson v. Henderson, 15 How. Pr. 90. Crawford v. Wilson, 4 Barb. 504.) The judgment of affirmance, when entered, must refer back to the day and term when it was pronounced. (Bank of Rochester v. Emerson, 10 Paige, 359.)

As to this judgment, (the judgment below,) the plaintiff cannot take any proceeding on the same, founded on the act of the general term. This execution is founded on the original • judgment alone; and whatever rights or liens are acquired by a levy under it, must be treated as vested rights. (Matter of Berry, receiver, 26 Barb 55.)

It was held in the case of Jackson v. Varick, (7 Cowen, 413,) that on a case and bill of exceptions, the prevailing party may take effect and advantage of the decision the moment it is announced.

I am not insensible to the value of the arguments which have been advanced to us by the learned counsel for the defendant. These arguments raise one of the many difficulties I have found in the case. They do not, however, affect my view as to the conclusions we should arrive at.

The order appealed from should be reversed ; but I do not concur with the learned chief justice, that it should be reversed with privilege to renew, &c. I agree with Justice Monell, that the order should be reversed unconditionally, and with costs.

Order reversed.  