McKim v. Manwaring — 5 Hill & Den. 296

Majority

p. 296

McKim vs. Manwaring.

Headnote

Where, on appealing from the decision of a circuit judge denying a new trial, the party obtained an order staying proceedings pursuant to Sess. L. of ’32, p. 189, § 4, instead of giving security, and, after the time for appealing had expired, the circuit judge revoked the order; held, that the party was precluded from prosecuting his appeal, though the revocation was granted on an ex parte application.

Motion to strike cause from calendar, made on Friday of the second week of term. The defendants having obtained a

p. 297

verdict at the circuit, the plaintiff moved the circuit judge for a new trial, which was denied. On the 17th of October, 1842, due notice of the depisipn was served upon the plaintiff’s attorney, who, on the 20th of the same month, obtained from the circuit judge an order staying proceedings, with a view to an appeal. (/See /Sess. Laws of 1832, p. 189, § 4.) Notice of the order was served on the defendant’s attorney within the time prescribed by the 81st general rul.e of the court. After the time for appealing had expired, viz. on the 9th of March, 1843, the circuit judge revoked the order staying proceedings upon an ex parte application of the defendant’s attorney, who thereupon gave notice of the revocation to the plaintiff’s attorney, and entered up judgment. Without any further proceedings on the part of the plaintiff, his attorney noticed the cause for argument at the present term, and caused the same to be placed upon the calendar.

S. W. Jones, for the defendant,

insisted that the revocation of the order staying proceedings annulled the right of prosecuting the appeal, and that the cause should therefore be stricken from the calendar.

N. Hill, Jun., for the plaintiff,

contended that the only effect of the revocation was to give the defendant the right of entering up judgment and collecting the same by execution. The appeal having been duly, made in pursuance of the statute, the right to prosecute it could not be taken away by the circuit judge, especially on an ex parte application.

The statute (/Sess. Laws of 1832, p. 189, 14) prescribes two modes of appealing from the decision of the circuit judge, viz. by giving security, and by obtaining an order to stay proceedings. If the party choose to adopt the latter mode, he must do so at the peril of losing his right to prosecute the appeal on a revocation of the order.

Motion granted.