20 Wend. 585 | N.Y. Sup. Ct. | 1838
After advisement the following opinion was delivered :
‘The party has fifteen days after notice of an interlocutory decree or order of the court of chancery within which to appeal to this court. 2 R. S. 605, § 79. Knowledge of the order is not enough ; there must be a formal written notice to the party or his solicitor, before the fifteen days: will commence running. Jenkins v. Wild, 14 Wendell, 539. In this case the suit abated by the death of the complainant. It could not be further prosecuted, nor could any thing be done to prejudice the rights of the defendant, until the suit had been revived in favor of the proper legal representatives of the deceased. The authority of the complainant’s solicitor was at an end, and the notice which he gave of the chancellor’s order was a nullity. The defendant was in no danger of losing his appeal. He could only be precluded by a revival of the suit, and a notice of fifteen days from the new party complainant or his solicitor.
The attempted appeal was not only unnecessary for the saving of the defendant’s i ight of review, but was, I think, irregular and void. In cases not otherwise provided for, this court on appeal follows the practice of the house of lords in England. Rule 33. When either party dies after the appeal has been presented to the lords, the practice is to revive the appeal by bringing in the heir at law or personal representative of the deceased party. It is not necessary in such cases to revive the cause in the inferior court, though that course was formerly considered
The course pursued in this case is not only without the sanction of precedent, but-was not essential to the rights of the appellant. And besides, there was no bond “ to the adverse party,” and without it, the statute declares that the appeal “ shall not be effectual for any purpose.” 2 R. S. 605, § 80. The bond executed in this case was not aided by the provision, 2 R. S. 556, § 33. It was, I think, defective in substance, and utterly void.
In Wilson v. Hamilton, 9 Johns. R. 442, there was an abatement after the case had been brought into this court by appeal, and the cause was remanded to the court of chancery for the purpose of bringing in the new parties. This was done on the ground, as was said, that, “ this court does not possess original jurisdiction, so as to award process to bring in the parties whose interest has accrued since the appeal was filed.” This case goes further than is necessary to overturn the present appeal. But I
The appeal was irregular, and should be dismissed. There has been a mistake on both sides—by one party in giving notice of the order, and by the other in attempting an appeal—and no costs should be awarded.
The following order was made by the court:
Ordered, That the appeal be dismissed without costs, and without prejudice to the right of the defendant below to appeal from the order of the court of chancery within fifteen days after the suit shall have been revived in that court, and notice shall have been given by the new party complainant of the order appealed from.