Majority
p. 109WHITE a. KLINKEN. Supreme Court, First District; General Term, May, 1863.
Headnote
Stay op Proceedings.—Notice oe Entry oe Judgment.—Time to Appeal.After plaintiff's proceedings have been stayed, except that leave is reserved to him to enter judgment, a notice of the entry of judgment served by him is in violation of the stay, and is a nullity, and will not limit the time within which an appeal may be taken.[1]
p. 110Inasmuch as plaintiff’s proceedings, except to enter judgment, were stayed, the notice of entry of judgment was a nullity, and did not limit the time to appeal. [Olerke, J.—But is a notice of judgment a proceeding in the action ?] It certainly is, and a very important one too, as it limits the time within which to bring an appeal.
Motion to dismiss an appeal.
This was an action for slander, brought by David White against Tempke H. Klinken. At the trial, the jury found a verdict for plaintiff for fifty dollars. The court allowed the defendant thirty days to make a case, and ordered that all plaintiff’s proceedings be stayed in the mean time, except that he be at liberty to enter judgment. Judgment was entered February 5,1863, and on the following day the plaintiff served notice of the entry of judgment. The defendant served notice of appeal on March 9th. Plaintiff now moved to dismiss the appeal, as not taken within thirty days.
Gideon L. Walker, for the motion..
Nelson Smith, opposed.
We are all of opinion that the order staying the plaintiff’s proceedings prevented the giving notice of the judgment, and that such notice was a nullity. The defendant’s time to appeal has not been limited, and the motion to dismiss must be denied, but without costs.
Footnotes
- * Present, Sutherland, P. J., Barnard and Ceerke, JJ,