Thompson, respondent, vs. Blanchard et al. appellants

Thompson, respondent, vs. Blanchard et al. appellants. An appeal is perfected within the meaning of the code of procedure and of the 2d rule of this court, when the proper undertaking, with an .affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party, and on the clerk with whom the judgment or order appealed from was entered. And therefore held, that an order dismissing an appeal under the 2d rule of court for not causing the return to be filed within twenty days from the time the appeal was perfected, was regular, although twenty days had not elapsed since the time allowed for excepting to the sureties had run out. An appeal properly taken and with the proper security stays the proceedings on the judgment or order appealed from, although the time for excepting to the sureties has not expired. (Code, § 339.) Notice of the appeal was given to the respondent, who was plaintiff in the court below, on the 2d day of November last; and on the 5th day of that month notice of the appeal was served on the clerk, and the proper undertaking was filed. On the 27th day of the same month the respondent entered an order, under the 2d rule of this court, dismissing the appeal for want of prosecution, on the ground that no return had been filed within the twenty days allowed for that purpose. N. Hill, Jr. for the .appellants, moved to vacate the order dismissing the appeal on several grounds; and among others, he said the order was entered too soon. The appellant has 20 days after the appeal is perfected to cause the return to be filed, and the appeal is not perfected, nor is there any stay of proceedings until after the ten days allowed for excepting to the sureties have elapsed; and if there be an exception within the ten days then the appeal is not perfected, nor is there any stay of proceeding until the sureties have justified. If the appellant wants a stay of proceedings in the mean time he must obtain an order for that purpose in the court below. He cited rule 2d, and the following sections of the code, 340, 341, 196, 334, 332, 343, 339, 328. S. Stevens, for the respondent, cited sections 334, 335, 341, 342, of the code. Wade v. De Leyer, 63 N. Y. 318. [MAJORITY — Bronson, Ch. J.] Bronson, Ch. J. In using the word “ perfected,” the second rule of this court follows the code; and although there is room for doubt, we think an appeal is perfected within the meaning of the code, when the proper undertaking, with an affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party and on the clerk with whom the judgment or order was entered. It is true that the appeal may still fail should there be an exception to the sufficiency of the sureties and they should not justify. (§341.) But when the party has executed the undertaking and given notice, he has done all in his power to perfect the appeal; and the proceedings ought then to be stayed, without requiring him to get. an order for that purpose. And if the appeal is deemed perfected for the purpose of a stay, it ought also to be deemed perfect for the purpose of requiring the appellant to take the next step in the cause. The twenty days allowed by the second rule for -procuring a return, (and the forty days allowed by the seventh rule for serving cases,) should commence running from that time. The order dismissing the appeal was not, therefore, taken too soon. But on the facts disclosed in the papers, which I need not repeat, we think the respondent waived the order dismissing the appeal, and was not afterwards at liberty to set it up. On this ground the motion should be granted. There has been no return or remittitur in this case as there was in Dresser v. Brooks, (ante, p. 559.) And vacating the order dismissing the appeal will leave the parties in the same position as though the order had never been entered.1 Motion granted.