Majority
p. 215William Smith v. Bethuel Dodd and another.
Headnote
An appeal will not lie from an order, until it is entered and the motion papers are filed with the clerk of the court.The motion papers must be produced to the court upon the hearing of the appeal.
Where no papers are used and the motion is made by consent upon mere verbal statements, no appeal can be taken.
This cause came up to the general term in the form of an appeal, by the plaintiff, from an order directing a special reference to take and state an account. The appeal was submitted upon the pleadings and a draft order, with points of
p. 216
counsel; but no order had been entered nor papers filed with the clerk of the court.
Peter Y. Cutler, for the plaintiff.
James 8. Scmdford and Mortímer Porter, for the defendants.
The papers on which the motion was made are not furnished to the court, nor have I been able to find any on file, or any order entered with the clerk. Until this is done there can be nothing to appeal from, and the court cannot decide upon the merits without the papers.
If none were used, or the motion was made on mere verbal statements, it must have been by consent, and no appeal in such case could be taken.
Case dismissed.[1]
(a) (a) The order was afterwards regularly entered, and was reviewed upon the merits at the succeeding October term. See post.—Rep.