Sage v. Volkening

Sage v. Volkening. It is no excuse for the non-service of copies of the case, as required by rule 7 of this court, that appellant has not caused the return to be made and filed, as required by rule 2. (Argued November 14, 1871; decided November 16, 1871.) Motion to vacate order dismissing appeal for non-service of papers. The excuse offered was that the return had not been made and filed. J. H. Reynolds, for motion S. Hand, contra. [MAJORITY — Allen, J.] Allen, J. By the second rule of the court, it is made the duty of the appellant, to cause the proper return to be made, and filed with the clerk of the court, within twenty days after the appeal shall be perfected. Upon his failure to do so, proceedings may be taken by the respondent, to compel the same to be done, or in default thereof, for a dismissal of the appeal. But the respondent is not compelled to resort to this proceeding, and his omission to do so does not relieve the appellant from the consequences of his neglect, or put him in a position in which he may allege his own neglect and default, as an excuse for the non-performance of other acts required of him by the rules and practice of the court. Rule T of the court requires the appellant, to serve upon his adversary, printed copies of the case within forty days after the appeal is perfected, and this is independent of the duty imposed upon him, to cause a return to be made and filed; and it is no excuse for the non-service of the papers, that he has failed to comply with another rule of the court. The order dismissing the appeal was regular, and as no merits are shown, and the omission to serve copies of the case is not excused, the motion must be denied, with ten dollars costs. All concur. Motion denied.