Griswold v. Van Deusen — 2 E.D. Smith 178

Majority

p. 178

Daniel L. Griswold v. George Van Deusen.

Headnote

Where a notice of appeal from a judgment of one of the justices’ courts does not contain the grounds of the appeal, in compliance with § 353 of the Code, the appeal should be dismissed.

A motion to dismiss an appeal for that reason should be made at a special term.

Uotice of appeal may be served immediately after the justice renders judgment, without waiting for the clerk of the court below to docket the judgment.

The appeal is not perfected until the appellant pays the costs of the action, as provided by § 354 of the Code.

Appeal from a judgment of nonsuit, rendered against the plaintiff in the Third District Court. It was said, in the return, that no judgment had been docketed by the clerk of that court, on the decision of the justice. The grounds upon which the appeal was founded were not stated in the

p. 179

notice of appeal, as required by § 353 of the Code, and it did not appear that the appellant had made any payment of the respondent’s costs, pursuant to § 354.

H H. Griswold and Bioha/rd Goodman, for the appellant.

John H. Hand, for the respondent.

The motion to dismiss this appeal should be granted, for the reason that the notice does not contain the grounds upon which the appeal is founded. That notice now takes the place of the affidavit, which was formerly required to be served on the party, and it is expressly required by the 353d section of the Code.

The motion should, however, have been made at the special term.

On looking into the return, I find no judgment has been recorded by the clerk. The justice, however, returns that he rendered judgment of nonsuit in the cause. It is the act of the justice and not of the clerk which makes the judgment from which the appellant appeals, and it can hardly be supposed that the law was intended to throw upon an appellant the necessity of waiting for the actual docketing of the judgment before serving notice of appeal. He may desire to stay the issuing of execution by a bond, and for that purpose may serve his notice as soon as the justice renders the judgment. In order to perfect the appeal, however, it was necessary that the appellant should pay the costs of the action included in the judgment. .

Appeal dismissed.