
    Same Term.
    
      Before the same Justices.
    
    Cruger vs. Douglass and others.
    The fact that upon entering an appeal the proceedings in the court below are stayed, although such security has not been given as to justify a stay of proceedings, will not vitiate the appeal.
    The want of such security will only operate to vacate the order to stay proceedings.
    All orders made in the progress of a cause, at a special term, are the subject of an appeal to the general term unless they relate merely to matters of practice and procedure, or rest in that discretion which is not governed by any fixed principles or rules.
    Accordingly held, that an order awarding process to carry into effect a decree of the court, was appealable, as affecting the merits of the suit.
    Whether a precept ought to be issued, during the progress of a cause, for the purpose of executing, in part, a decree which may be ultimately reviewed and reversed, on appeal % Qncere.
    
    Since interlocutory orders can be reviewed in the court of appeals only after final judgment, it becomes the supreme court to be very cautious how it executes an order in such a manner as virtually to take away the right of appeal. Per Edmonds, P. J.
    In Equity. The plaintiff filed his bill of complaint in the late court of chancery, to enforce the execution of an appointment made by virtue of a post-nuptial settlement, or to revoke the settlement itself. The cause was heard before the late vice chancellor of the first circuit, and afterwards in this court, on appeal from his decision. The general term, on such appeal, affirmed the decree of the vice chancellor, and among other things decreed that the defendants, as trustees, should forthwith out of the trust funds in their hands, pay to the plaintiff the sum of $5000, but awarded no execution therefor. The plaintiff, on an affidavit showing a demand of that sum of the defendants, and their refusal to pay it, moved at special term for a precept under section 4, 2 It. S. 535, to commit them until payment. Such precept was awarded, and from the order awarding it, an appeal was taken to the general term under §7 of the act supplementary to the code.
    Cruger, (plaintiff in person) and F, B. Cutting, now moved to dismiss the appeal for irregularity, and because the order appealed from did not involve the merits of the action, or any part of it.
    
      C. O’ Conor, contra.
   By the Court, Edmonds, P. J.

The grounds on which the motion to dismiss the appeal was rested were all disposed of on the argument except two:

1. That the appeal had been irregularly taken, and

2. That the order was of such a nature that it was not the subject of an appeal.

The irregularity is said to consist in this: that proceedings were stayed, while such security was not given as to justify a stay of proceedings, but only an undertaking in $250 as security for costs. The want of such security will not vitiate the appeal. It can only operate to vacate the order to stay proceedings. That might have been done at chambers, and it is not proper to come here in the first instance to get relief from that order. The order may be irregular and void, but that does not make the appeal so, and the objection of irregularity must be overruled.

The main question is whether the order can be appealed from at all. That depends solely on the question whether it involves the merits of the suit or any part of it. (Act supplementary to the code, § 7.) It is not easy to give to this expression a definite meaning, whereby a fixed and certain rule can be established. It will doubtless be intelligible to the common understanding as soon as its meaning shall be ascertained. In the mean time the search for that meaning is not without its difficulties. The decree obtained at the general term in this suit adjudged, in effect, that the defendants had in their hands, at all events and beyond all contingency, the sum of $5000 belonging to the plaintiff, and ordered that it should be forthwith paid to him, but awarded no process for the collection of that sum, and specified no mode of enforcing its payment. For that purpose the plaintiff was obliged to apply at a special term. He might have applied for an execution against the defendants’ properly,, or for a precept against their bodies. And the question is whether the decision at the special term granting either of these writs, or denying both of them, and consequently all means of enforcing the decree of the court, “ involves the merits of the action or any part of it.”

The expression in question is not exactly novel in our judicial proceedings. And as it enters very much into our present modes of procedure and is frequently used in reference to a review of the decisions of our courts, it becomes material not only in reference to the question now before us, but as a matter of general practice, to ascertain as far as practicable its meaning and application. The line of separation is not always very strongly marked between questions which are purely of a discretionary character and those which depend upon some established principle. The practice and principles of the court are so intimately connected that it is sometimes difficult to determine whether a particular order shall be regarded as disposing of the rights of a party, or merely as regulating the course of proceeding in a cause. Still it will be found that an approach has been made to a definite rule, and has perhaps gone so far as to enable us satisfactorily to determine the question now before us on well established principles. The jurisdiction of the late court for the correction of errors, in reviewing the orders of the court of chancery, was, under the constitution and the statutes, very broad. Within the language used at one time every order of the court of chancery might be reviewed, and any party, whenever aggrieved thereby, had a right to appeal. Yet the court of last resort, at an early day, attempted to provide a limit to a practice which might have transferred to that court the whole business of the court of chancery, and rendered a suit interminable as to time, and burdensome as to expense, beyond endurance. That limit was found in a rule allowing appeals only from orders which involved the merits. The question arose as early as 1800, in the case of Newkirk v. Willet, (2 John. Ca. 415,) but was not then decided. It came up again in Taylor v. Delancey, (2 Cai. Ca. 142,) in Trustees of Huntington v. Nicoll, (3 John. 566,) and in Mc Vickar v. Wolcott, (4 John. 510.) In none of those cases was the point determined, though in all of them it was conceded that there were some orders of the court of chancery which were not appeal-able ; and it was intimated that all orders affecting the merits were not of that character. In the case of Buel v. Street, (9 John. 443,) the question was.however distinctly passed upon by the court of errors. An order awarding an attachment to bring up a party to answer for an alledged contempt was held not to be appealable, because it did not affect the merits. And Kent, Ch. J. and Spencer, 3. who'delivered opinions, ruled that orders relating to the process and practice of the court—mere practical orders—were not appealable. In Travis y. Waters, (12 John. 510,) Platt, J. who delivered the prevailing opinion in the court of errors, held that an order of the chancellor upon a point of practice was not the subject of appeal. In that case, as well as in Clason v. Shotwell, (12 John. 31,) it was also held that an order merely resting in the discretion of the court below was not the subject of appeal. From that day to this, it has been the established rule that an order involving mere questions of practice and proceeding, or resting in discretion, does not involve the merits, and therefore is not the subject of an appeal. This seemed to be as near an approach to a definite rule as the courts were able to arrive at; yet it was not without difficulties in its application. The question lias been frequently before the courts, and the rule has been adhered to, with no other modification or qualification that I can discover, than to regard as appealable all orders which affect the substantial rights in controversy between the parties. Thus, an order granting or dissolving an injunction was appeal-able, because the merits had directly to be considered. (Mc Vickar v. Walcott, 4 John. 510. See 16 Wend. 373; Simpson v. Hart, 14 John. 65; Martin v. Dwelly, (6 Wend. 11.) But an order appointing a receiver was not; because it was aside from the merits—did not pass' upon the rights of the parties—but only related to the preservation of the property in dispute, pendente lite. (Chapman v. Hammersley, 4 Wend. 173.) So an order awarding an attachment to bring up a party to answer for an alledged contempt was not appealable; (Buel v. Street, 9 John. 443 ;) while an order adjudging a party to be guilty of the contempt, and directing his arrest therefor, was appealable. (McCredie v. Senior, 4 Paige, 378.) So an order refusing to set aside an order taking a bill as confessed, was held not to be appealable, because it did not touch, though it might consequentially affect, the merits, but related mainly to mere matter of practice and rested in the discretion of the court. (Rowley v. Van Benthuysen, 16 Wend. 369. See also 12 John. 31; Murphy v. American Life Insurance and Trust Co., 25 Id. 249.) But an order refusing to allow witnesses to be re-examined was appealable, because it directly touched and affected the merits. [Beach v. Fulton Bank, 2 Wend. 225. See also Tripp v. Cook, 26 Wend. 150.) So also orders as to costs have been considered as the subject of an appeal according as they were matters appurtenant to the merits, or depended merely on discretion. (Owen v. Griffith, 1 Ves. 250. Taylor v. Popham, 15 Id. 72. Jenour v. Jenour, 10 Id. 562.) So an order refusing a rehearing of a motion for instructions to a master as to the examination of a witness, is not appealable; (Williamson v. Heyer, 4 Wend. 170,) because the application was addressed purely to the discretion of the chancellor. But an order reviving a suit against the representatives of a deceased party is appealable, where the rights of the party are affected by such revival. (Rogers v. Patterson, 4 Paige, 450.) So an order merely irregular can not be appealed from, (Gibson v. Martin, 8 Paige, 481;) or one containing a mistake in an arithmetical calculation. (Rogers v. Hosack, 18 Wend. 329.)

From all these cases I gather this as the established rule, that as all orders in the progress of a cause necessarily in some degree affect the merits, so all are the subject of an appeal, unless they relate merely to matters of practice and procedure, or rest in that discretion which is not and can not be governed by any fixed principles or rules; and that such rule was in the view of the legislature when it enacted the statute now under consideration. This view of the statute will give harmony to our entire system of review, while otherwise it might be somewhat incongruous.

Thus, a single judge, sitting in special term, has every question arising in the progress of a cause, from its commencement to final judgment, submitted to his determination. In all matters of practice, or resting merely in his discretion, his decision is final; but where that decision involves the merits, as often as it may be made, and whatever shape it may assume, it is the subject of review at the general term, from time to time in the progress of the cause. From his decision nothing can go directly to the court of last resort. It must pass through the general term; and whatever decision the court at its general term may at any time pronounce in any stage of the cause, involving the merits and affecting the final judgment, may ultimately be reviewed in the court of appeals, after a final judgment in this court.- So that while in the court of appeals a cause can be reviewed only once, it may be reviewed in this court at its general term as often as any decision shall be made at the special term affecting the merits. And every decision made in this court involving the merits and necessarily affecting the final judgment, may ultimately be reviewed in the court of appeals. But questions of practice, or resting merely in that discretion which can have no fixed rules, remain where they originate, and go no farther to plague the appellate tribunals with mere matters of form and discretion.

Iii this view of our system of appeals it must be apparent how important it is to withhold from the higher tribunals the incumbrance of mere practical matters and at the same time to afford to parties the opportunity of reviewing any matter affecting the substantial rights in controversy. Section 349 of the code, which though not immediately applicable to this case, has been freely referred to as illustrating the meaning of the supplementary act, is in harmony with this view, and expressly excepts from an appeal any question of practice unless it in effect determines the action, and precludes an appeal. And the rule commends itself to our favor, because it tends to render the statute intelligible, and furnishes a guide in such cases, which it will not be difficult to follow.

Under the rule thus understood the question recurs; is the application of a party for process to carry into effect a decree of the court a mere question of form of proceeding or a matter resting merely in the discretion of the court 1 Manifestly it is neither. A party who has obtained a judgment of the court has an absolute right to the appropriate and adequate means of enforcing it; and it does not rest in the discretion of the judge at special term to grant or refuse it. And when the whole merits of the controversy have been concentrated in the judgment of the court, it can not, with any propriety, be said that the sole mode of procuring the enjoyment of those merits, is mere matter of practice and mode of proceeding. The granting or refusing the means of enforcing that judgment would seem very materially to affect the merits.

These considerations dispose of this motion, and render it unnecessary for us to examine any of the other questions which were raised on «the argument. Most of them indeed belong only to the consideration of the main question involved in the appeal, and it would be clearly improper to consider them in this connection.

The motion to dismiss the appeal must be denied, without costs.

In the mean time, and until the appeal can be heard, there ought to be a stay of proceedings on the order of the special term and the .precept issued under it. We entertain strong doubts of the propriety of having granted that precept, inasmuch as it executes, in part at least, a decree which may ultimately be reviewed on appeal, and may be ultimately reversed. Formerly, when orders of the court of chancery could be appealed from without awaiting the final judgment, it was not of so much consequence about enforcing the execution of an interlocutory order. But now, when such orders can be reviewed in the court of appeals only after final judgment, it becomes the court to be very cautious how it executes an order in such manner as virtually to take away the right of appeal. Therefore it is that we think that proceedings on the precept ought to be stayed until we can determine whether it is proper to enforce the decree of the general term, before a final judgment shall be rendered.  