Newton v. Harris

8 Barb. 306 | N.Y. Sup. Ct. | 1850

Welles, J.

The judgment sought to be set aside, is supposed by the defendant’s counsel to be irregular for the following reasons : First. That there has been no appeal in the cause to the court of appeals; all the proceedings being irregular, null and void. Second. That if the court should be of the opinion that the appeal is effectual for any purpose, the same was not perfected at the time it was dismissed by the court of appeals, and that the order of that court dismissing the appeal was irregular and void. On the first point the defendant’s counsel contended that as the sureties justified only in double the amount of the judgment appealed from, and not in double the amount of the $250 besides, there was no appeal; that the plaintiff was not bound by the notice of appeal, and of the sureties served upon him; that he was not at liberty to notice the proceedings on the part of the defendant taken with a view to the appeal; and that any steps taken by him to have the appeal dismissed, were without foundation and utterly null and void. But I think here was a perfect valid appeal. Section 327 of the code prescribes how an appeal shall be made. The notice given in this case, together with the undertaking filed with the clerk, clearly constituted an appeal from the judgment. The terms of the undertaking are in conformity with sections 334 and 335. The only objection to it is that the affidavit of the sureties did not conform to section 335. That was only necessary in order to stay the execution on the judgment. The amount in which the sureties did justify was sufficiently large to meet the requirements of section 334. And the undertaking I think was good for the purpose of an effectual appeal, without staying the execution.

The 340th section requires that a copy of the undertaking, including the names and residences of the sureties, be served on the adverse party, with the notice of appeal. That was not done in this case, but notice of the appeal was given to the party and the clerk, and notice was also given that the requisite security was filed with the clerk. After all this the plaintiff can not, I think, be permitted to say there has been no appeal.

Second. Was the appeal regularly dismissed? It was'done under the 7th rule of the court of appeals, which provides that within forty days after the appeal is. perfected the appellant shall serve three printed copies of the case on the attorney of the adverse party. If he fails to do so, he shall be deemed to have waived the appeal; and on an affidavit proving the default, the respondent may enter an order with the clerk, dismissing the appeal for want of prosecution, with costs, &c.

The appeal was perfected in this case on the 18th day of August. On the 4th day of February, 1850, it was dismissed and the remittitur sent down. I confess I am unable to perceive any irregularity. More than forty days had elapsed after ’ the appeal was perfected, and if no printed copies of the case had been served, the rule referred to entitled the respondent to the order dismissing the appeal.

But there is another view which seems to me fatal to the defendant on the present motion. The motion seeks to get rid of the order of the court of appeals dismissing the appeal, on the ground that it was irregularly entered. That is the effect of the relief asked for. While that order remains not vacated or set aside, this court is bound by it, whether irregular or not; unless indeed it is absolutely void. It appears regular on its face, and if it is not so it must be by reason of the defectiveness or falsity of the affidavit upon which it was entered. And it is clear to my mind that this court has no jurisdiction to interfere with it, and that the defendant should apply for relief in the court in which it was entered. The defendant’s counsel, however, contends that as the remittitur has been sent down and filed in this court, the court of appeals have lost jurisdiction over the cause, for every purpose; and several authorities have been cited to sustain that position. It is undoubtedly true that where the appeal is regularly dismissed and the remittitur sent down, the appellate court loses possession of the cause and all power over it. But where an order is irregularly entered, or entered upon a false or garbled affidavit, dismissing the appeal, it can not be that the party is without remedy. The respondent takes his order dismissing the appeal under the 2d or 7th rules of the court of appeals, without notice to the appellant, and without application to the court; and it may be entered in vacation. Suppose the attorney for the respondent, after the lapse of forty days from the time the appeal is perfected, makes an affidavit that he has not been served with copies of the printed case in pursuance of the 7th rule, and takes his order to dismiss the appeal, and causes the remittitur to be immediately sent down; and the appellant is able to satisfy the court of appeals that the cases were served in time, either on the respondent’s solicitor personally, thus showing the affidavit upon which the order was entered false; or that the cases were served upon the attorney’s clerk in his office, in the absence of the attorney, or that the time to serve the cases had been enlarged by written stipulation between the attorneys, thus showing the affidavit garbled, or indeed any other state of facts showing that the respondent was not entitled to the order, can it be doubted for a moment that the court would, on application, vacate the order ? It seems to me that their power in such a case is unquestionable. And that by vacating the order the appeal, as a necessary consequence, would be restored. To assume a contrary position, would open the door to the most intolerable vexation and imposition. An appellant would be liable to have his appeal dismissed as often as he should bring one, until the two years’ limitation prevented his bringing another, and the appellate court would have no power to give relief.

If I am wrong, therefore, in supposing the respondent was regular in getting the appeal dismissed, the court of appeals would, on a proper application, vacate the order, and then there would be no foundation for the judgment entered in this court upon the remittitur.- And this court would set it aside, if necessary, on motion. But while it stands, this court has no power to make any order impairing its force.

It seems to me that the defendant’s only remedy is either by application to the court of appeals, to set aside the order dismissing the appeal, or by bringing a new appeal. The motion must be denied with §10 costs.