« ΠροηγούμενηΣυνέχεια »
This section corresponds to section 275 in the code of 1848. In the code of 1848 the section stopped at the point where the asterisk is placed. Upon this section, as it stood in the code of 1848, where a notice of appeal which stated that the defendant appealed " from the judgment entered in this action to the general term," was objected to, the court, Harris, J., said "Such a notice is, I thiuk, a sufficient compliance with the requirement of the code. It was not, I apprehend, intended to require that the notice of appeal should be more specific than was required upon appealing from a decree or order in Chancery; and there it was never required that the grouuds of appeal should be stated in the notice. It is enough if the notice specify what part of the judgment it is intended to review upon the appeal. Wilson v. Allen, 3 Pr. R., 372.
The appeal is not made until the service of the notice on the clerk. And therefore the notice of appeal must be served as well on the clerk as on the respondent, within the times respectively prescribed by sections 331, 332. Westcott v. Platt, 1 Code Rep., 100.
The deposit of a notice of appeal in the post-office on the last day for bringing the appeal, and where such notice is not received by the party to whom sent until after the time to appeal has expired, is in time, but a like service on the clerk is not in time and is irregular; but the court has power and will in such a case to order that the notice be deemed sufficient, so as to give the party the benefit of his appeal. Crittenden v. Adams, 1 Code Rep., N. S., 21.
Notice of appeal should be served on the attorney of record in the court below, not on the party
The service of such notice being a jurisdictional question, the party can take advantage of it at any time, if he has not appeared so as to give jurisdiction in the case.
Where such service was made upon the party only who had not appeared so as to give the court jurisdiction, Held—that the appeal was a nullity. Tripp v. De Bow, 3 Code Rep., 163. 5 Pr. R., 114.
See rules of court of appeals in appendix. And Dresser v. Brooks, 2 Code Rep., 130, and notes to sections 332, 334, and 341.
$ 328. [276.] Clerk to transmit papers to appellate court.Upon the appeal, allowed by the second and third chapters of this title, being perfected, the clerk, with whom the notice of appeal is filed, shall, at the expense of the appellant, forthwith transmit to the appellate court a certified copy of the notice of appeal and of the judgment roll.
A question having arisen as to the order on the calendar of appeals from inferior courts, the supreme court in geueral term at Albany, directed that such cases should have priority, from the date of the filing the return of the court below, in analogy to the practice of the court of appeals, and to the former practice on writs of error in the supreme court. The papers are transmitted to the appellate court, by being filed with the clerk of the supreme court in the proper county, and then this court has jurisdiction of the case, and from that time the cause should have priority. 2 Code Rep., 41.
Where the certified copy of the notice of appeal and judgment roll, omitted the word " copy," and the name of the clerk, and was objected to ou that ground, the court permitted an amendment. Lansing v. Russell, 4 Pr. R., 213, and see rules of court of appeals in appendix.
$ 329. [277.] Intermediate orders affecting the judgment may be reviewed on the appeal.—Upon an appeal from a judgment, the court may review any intermediate order involving the merits, and necessarily affecting the judgment. $ 330. [278.] Judgment on appeal.— Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment.
On appeal, only such parts of the judgment as are appealed from, can be reviewed. Kelsey v. Western, 2 Coms., 500.
§ 331. [279.] Certain appeals to be within two years. The appeal allowed by the second and third chapters of this title must be taken within two years after the judgment.
An appeal cannot be taken until after entry of the judgment appealed from, Bradley v. Van Zandt, 3 Code Rep., 217. McMahon v. Harrison, 5 Pr. R., 360, but it may be taken at any time on the same day that the judgment is entered, and in that case the court will not inquire which was first, the entry of the judgment or the taking the appeal. Blydenburg v. Cotheal, 16., 216.
The code precludes the court from enlarging the time to appeal. Renouil v. Harris, 2 Code Rep., 71. Enos v. Thomas, 5 Pr. R., 361. Rowell v. McCormick, Ib., 337, and see Traver v. Silvernail, 2 Code Rep., 96.
A stay of proceedings on the judgment does not extend the time of appeal. Renouil v. Harris, supra.
$ 332. [280.] Other appeals within thirty days.—The appeal allowed by the fourth chapter of this title, must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing.
See note to preceding section.
The time for appealing under this section does not begin to run until the judgment is entered, which does not mean entered on the minutes, at the special term, but entered in the judgment book and perfected. Bentley v. Jones, 3 Code Rep., 37.
The judgment cannot be covsidered as entered within the meaning of this section until it is perfected. Bentley v. Jones, 3 Code Rep., 37. The judgment cannot be entered until the costs are ascertained, for the costs are to be inserted in the entry of judgment, (s. 311.) And until the amount of damages and costs are ascertaired, the party cannot draw the undertaking required by section 335. Harris v. Bennett, 3 Code Rep., 23.
Appeals to the Court of Appeals. Section 333. In what cases. 334. On any appeal security must be given to pay costs and damages,
not exceeding $250, or deposit made, unless waived.
343. Undertaking must be filed. § 333. [282.] In what cases.—An appeal may be taken to the court of appeals, in the cases mentioned in section 11.
On the construction which I have given to these statutes (the code and supplement) when the matter was decided before the first of July, 1848, the right to a review, the time within which the proceeding must be commenced, and the form of prosecuting it from beginning to end, all depend upon the old law. But when the matter is decided after the first of July, 1848, whether the suit was commenced before or after that day, the right to appeal, the time within which the appeal must be taken, and the mode of procedure all depend upon the code. A different construction might give an appeal after the 1st of July, 1848, in a case where the right of appeal had been lost by the lapse of time before the code took effect, which could not have been intended by the framers of the code, per Brouson, Ch. J., in Mayor, dc., of New-York v. Schermerhorn, 1 Code Rep., 109. Spalding v. Kingsland, 1 Code Rep., 110. Seldon v. Vermilya, 1 Code Rep., 110. Butler v. Miller, 1 Code Rep., 110. Luke v. Gibson, 3 Pr. R., 420.
334. [283.] On any appeal security must be given to pay costs and damages, not exceeding $250, or deposit made, unless waived.—To render an appeal effectual for any purpose, a written undertaking must be executed on the part of the appellant, by at least two sureties, to the effect, that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars; or that sum must be deposited with the clerk, with whom the judgment or order was entered, to abide the event of the appeal. Such undertaking or deposit may be waived by a written consent on the part of the respondent.
Where in an action against several defendants who defended separately the judge ment of the court below was that one defendant (Lynes,) recover against the plaintiff $2008.78, and that the other defendants recover against the plaintiff $412.93.There was but one judgment record. The plaintiff appealed to the court of appeals, and gave one undertaking to recover the two sums adjudged to the defendants, and another undertaking to pay all costs and damages which might be awarded
against him on the appeal, not exceeding $250. On motion to dismiss the appeal on the ground that there should have been two undertakings in the sum of $250 each, one to Lynes and one to the other defendants, the court denied the motion, and held, Thai as there was but one judgment, though it was for two sums, and as the appellant had given security for both those sums, and an undertaking for all costs, &c., not exceeding $250, there had been a full compliance with the statute. Smith v. Lynes, 4 Pr. R., 209, and see note to section 33
On an appeal from two orders, an undertaking in the sum of $250 is not sufficient, but undertaking may be amended. Schermerhorn v. Anderson, 2 Code Rep., 2.
Where an appellant, from a judgment directing the payment of money, gave an undertaking to pay the amount of the judgment and all damages awarded against the appellant upon the appeal,” but made no mention of " costs," it was held on motion to dismiss the appeal, that the undertaking did not comply with the requirement of this section, (334,) and that the appeal was not effectual for any purpose. Langley v. Warner, 1 Code Rep., 111. 3 Pr. R., 363, 364. Wilson v. Allen, 3 Pr. R. 369. Cau the court allow a new undertaking to be filed nunc pro tunc ? Ib. Such a power was in effect, although not in express terms exercised by the supreme court in Harris v. Bennett, 3 Code Rep., where, on motion to dismiss an appeal for defect in the undertaking, the court, Edmonds, J., ordered a new undertaking to be filed. See section 339.
§ 335. [284.] On judgment for money ; security to stay execution. If the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant by at least two sureties, to the effect, that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant, upon the appeal.
The undertaking should state the amount of the judgment appealed from. Rar. ris v. Bennett, 3 Code Rep., 23. See section 339.
§ 336. [285.] If judgment be to deliver documents, they must be deposited.-If the judgment appealed from direct the assignment or delivery of documents, or personal property, the execution of the judgment shall not be stayed by appeal, unless the things required to be assigned or delivered, be brought into court, or placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking be entered into on the part of the appellant, by at least two sureties, and in such amount as the court, or a judge thereof, or county judge shall direct, to the effect that the appellant will obey the order of the appellate court, upon the appeal.
$ 337. (286.] If to execute conveyance, it must be executed and deposited. If the judgment appealed from, direct the execution of a conveyance or other instrument, the execution of the judgment shall not be stayed by the appeal, until the instrument shall have been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court.
338. [287.] Security, where judgment is to deliver property or for a sale of mortgaged premises.--If the judgment appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed, unless a written undertaking be executed on the part of the appellant, with two sureries, to the effect that during the possession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.
On an appeal from a judgment for a sale of mortgaged premises, the appellant gave an undertaking pursuant to section 334, and it was held effectual to permit the appeal, but not to stay proceedings. Firemen's Ins. Co. of Albany v. Bay, 2 Code Rep., 3. See section 339.
$ 339. [239.] (Amended.)—Stay of proceedings, upon security given.—Whenever an appeal is perfected, as provided by sections 335, 336, 337 and 338, it stays all further proceedings in the court below, upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action, and not affected by the judgment appealed from. And the court below may, in its discretion, dispense with or limit the security required by sections three hundred and thirty-five, three hundred and thirty-six, and three hundred and thirty-eight, when the appellant is an executor, administrator, trustee, or other person acting in another's right; and may also limit such security to an amount not less than fifty thousand dollars, in the cases mentioned in sections three hundred and thirty-six, three hundred and