Ex parte Davis & Sowle — 5 Cow. 33

Majority

p. 33

Ex parte Davis and Sowle.

Headnote

Though a C. P. cannot entertain jurisdiction of a cause, on appeal, if the bond be defective ; yet on quashing the appeal for that cause, the parties being before them, they have jurisdiction of the person ; and may award the costs of the motion.

On dismissing an appeal as irregularly brought, by Davis and Sowle against Waugh, from a justice’s court to the C. P. of Monroe, the parties being in Court, and the motion being opposed, that Court awarded costs of the motion against the appellants; and now,

J. Platt, moved for a mandamus,

commanding that Court to vacate the rule, on the ground that they had no jurisdiction for any purpose; and he cited Ex parte Shethar, (4 Cowen’s Rep. 540,) and Ex parte Chryslin, (id. 80;) also Laws, sess. 47, ch. 238, s. 36, p. 295.

The motion was not opposed; but

These parties were before the Court, who, we think, had jurisdiction over their persons for the purpose of costs.^[1]

Motion denied.

(a) (a) In like manner, this court sometimes give costs against one who moves for a mandamus, if the motion be opposed, though it be denied ; and therefore no canso of action be commenced. (Ex parte Root, 4 Cowen’s Rep. 548.)