Ex parte Brown — 7 Cow. 468

Majority

p. 468

Ex parte Brown.

ALBANY,

Oct. 1827.

Headnote

Where the defective”11 the 0. P. may peM h at1” any after a motion uTdeniefL tml

Brown, the relator, sued Miller before a justice of Dutchess county, who rendered judgment for Brown, of about 30 dollars. Miller appealed; and a verdict passed in his favor of 250 dollars. A motion for a new trial made Brown was denied; and the proceedings stayed by order, for several terms, with a view to repeat the motion f°r a new trial. Finally, at the late October term of the C. P., that court quashed the appeal, on Brown’s motion,

upon the ground that the amount of the original judgment before the justice was not recited in the appeal bond.

S. Cleaveland

now moved for a mandamus''commanding the judges of the court below to vacate the order quashing *the appeal; and to proceed in the cause. The motion was not opposed; but

We - have decided that such a bond is defective. (6 Cowen, 585.) The consequence is, that the O. P. had no jurisdiction ; and might dismiss or quash the appeal at any time. (Ibid. id. 592, 593.) The principle which sanctions a dismissal upon the trial, extends to every stage of the cause. The C. P. wanted jurisdiction, and had a right to dismiss the cause, therefore, without regard to what the parties may have done in it.

Motion denied.