Bowers v. Tallmadge

Bowers v. Tallmadge. Where the return to an appeal served on the respondent is imperfect, Ms remedy must be sought by a special motion to the court. Rule 7, wMch allows the entry of a common order dismissing the appeal, applies only where there is an entire omission to serve a copy of the return witMn the proper time. Motion to set aside an ex parte order dismissing an appeal. The appeal was taken April 12, 1860. Printed copies of the Case were served upon the respondent’s attorney, May 18,1860. On the 28th May, 1860, the respondent’s attorney served the notice under Rule 7, requiring service of a copy of the return. The defect in the Case, as it had been previously served, was the omission of copies of the opinions delivered in the court below, at the special and general terms. The appellant’s attor ney was ignorant that any written opinions had been delivered. Upon learning the fact that such opinions had been delivered, the appellant’s attorney procured, printed and served copies of such opinions—having obtained an order allowing him additional time for that purpose. The respondent’s attorney, conceiving that the Case could not be served in fragments, after waiting for the expiration of the time limited by the rule for serving copies of the Case, entered an ex parte order dismissing the appeal. The respondent moved to set aside this order, Richard Goodman, for the motion. Amasa J. Parker, opposed. [MAJORITY — By the Court.] By the Court. The motion must be granted. The practice is well settled that where an imperfect Case has been served and the respondent desires that it should be amended, he must apply to the court by motion upon notice. He is at liberty to dismiss the appeal by ex parte order, under Rule 7, only where there is a total failure to serve any Case within the time required.