7 Paige Ch. 245 | New York Court of Chancery | 1838
The appellant’s solicitor was not misled or prejudiced in this case by the mistake in the caption of the decree, as he knew it was ante-dated as of the time of the hearing before the vice chancellor. Neither was he prejudiced by any thing which occurred in the clerk’s office; as he did not examine the books for the purpose of ascertaining when the decree was actually entered. If he had done so, and had been misled by any neglect or mistake of the clerk, it might be a sufficient ground for an application to the vice chancellor to have the decree re-entered, with a corrected caption; so as to give his clients an
The caption of a decree or order, unless otherwise directed by the court, should be made to correspond with the time of the actual entry of the decree. And if the solicitor, in drawing it up, has inserted a different time in the caption of the decree or order, without authority of the court, the register or clerk to whom it is presented to be entered, should require him to alter it so as to correspond with the time of such entry. In all cases, whether the decree is entered as of a previous time, nunc pro tunc, or otherwise, it should appear, either by an entry in the minutes of decrees or in the minutes of the proceedings in the cause, or in both, when the decree or order was actually entered.
Although the complainants’ solicitor was not prejudiced by any mistake of the clerk in the present case, I am satisfied the neglect to appeal within the time allowed by law arose from the circumstance of the date of the notice, on the back of the copy of the decree, being mistaken for the true time of the actual entry of the decree. I should therefore consider it my duty to relieve against such a mistake, if this court had the power to do so without exceeding the limits of its jurisdiction upon appeals. The time for appealing, however, being limited by law, and no authority being given to the chancellor to extend the time in any case, upon a mere mistake of the party in not entering his appeal within the time prescribed by the legislature, no relief can be given in this case. The respondent’s notice of his election to furnish the papers on the hearing, was not a waiver of the right to have the appeal dismissed ; even if it was competent for the parties to give jurisdiction to the court, by any agreement between themselves, to hear an appeal not made in time.
The appeal must therefore be dismissed; but under the circumstances of this case it must be without costs as against the appellants.
