Dresser v. Brooks

Dresser v. Brooks. The 7th rale of this court, adopted May 25,1849, requiring copies of the case to be served within forty days after the appeal is perfected, applies to appeals already pending, as well as those subsequently brought. Therefore, where an appeal was pending when the rale took effect, and the respondent waited forty days thereafter, and then, no copies of the case having oeen served, entered an order dismissing the appeal, held that the proceeding was regular. When a return has been filed, and any order is made by this court which disposes of the entire appeal, it is proper to send down a remittitur, although it may not be an order on the merits. So held, where the respondent entered an order dismissing the appeal under the 7th rale for want of service of copies of the case. After a remittitur has been regularly sent to the court below, this court loses jurisdiction of the cause. 11 the respondent, after an appeal has been dismissed and the cause remit jed, charges too much costs of the appeal, the remedy is by motion in the court below. Appeal from a judgment of the supreme court, brought Sept. 1, 1848. The appellant did not serve printed copies of the case, and on the 14th of August, 1849, the respondent entered an order dismissing the appeal for want of prosecution, with costs, pursuant to the 7th rule of the court; and the case was remitted to the court below where execution was issued on the judgment, with costs of the appeal, amounting to $85,13 ; of which $25 was for costs before argument, and $50 for argument. (Code, § 307) H. Dresser, in person, moved to set aside all the respondent’s proceedings for irregularity. The 7th rule was not applicable to this case; the appeal having been taken before the present rules were adopted. (See Rule 19.) Second, as the judgment of the court below was neither reversed, affirmed, nor modified, this was not a case for a remittitur. There was no judgment of this court within the meaning of the 16th rule of the court, or within the 12th section of the code. (McFarlan v. Watson, 4 How. P. R. 128.) Third, execution has been issued for toe much costs. C. H. Doolittle, for the respondent. But not until it is actually and regularly filed with the clerk of the court below. Burkle v. Luce, 1 N. Y. 239 ; Morton v. Wilson, Ibid. 240 ; Cushman v. Halfield, 52 Ibid. 653 ; and that court has taken some action thereon ; People v. Village of Nelliston, 79 Ibid. 638. [MAJORITY — Bronson, Ch. J.] Bronson, Ch. J. The appeal was pending when the 7th rule was adopted, and when it took effect: the respondent waited forty days after the rule took effect,' and no copies of the case having been served within that time, he then proceeded, under the 7th rule, and entered an order dismissing the appeal. The first question is, whether the 7th rule applies to such a case, or whether it is governed by the former practice. (See Rule 19.) A majority of the judges are of opinion that the rule applies; and consequently, that the appeal was regularly dismissed. 2. After a return has been filed, we think a remittitur is proper whenever any order is made which finally disposes of the appeal, although it may not be an order on the merits. It is a mistake to suppose the court held otherwise in McFarlan v. Watson. There was an appeal in that case from a judgment and an order, and the appeal was dismissed so far as related to the order only; and yet the respondent took a remittitur, and sent back the judgment as well as the order. This was clearly irregular, and for that reason the respondent’s proceedings were set aside. 3. Although the respondent has been regular, the appellant would be relieved on terms, if we had power to grant it; but as the cause has been regularly remitted to the supreme court, we no longer have jurisdiction, and cannot grant relief. The only remedy is a new appeal. 4. Although . the respondent may have charged too much costs, the remedy for that is by motion in the court below. Motion denied. See Thompson v. Blanchard, post.