Palmer v. Moeller — 2 Hilt. 421

Majority

p. 421

George W. Palmer v. Charles Moeller.

Headnote

Leave to go to the Court of Appeals in an action commenced in a district court, will not be granted, where the question decided by this court relates only to the practice in those courts under the provisions of the District Court Act, and a case involving the same question has been previously permitted to be taken to the Court of Appeals.

go held in a ease where, upon appeal, the judgment was reversed, because the action was commenced by a non-resident plaintiff by long summons, and without giving security for the defendant’s costs.

Motion for leave to appeal to the Court of Appeals from a judgment of this court at general term, reversing a judgment of a district court.

Elijah B. Holmes, for the motion.

H. C. Place, opposed.

This action was commenced by a non-resident plaintiff, by long summons, and without giving the security required by the “ Act relative to the district courts,” passed in April, 1857. At the trial, upon these facts appearing, the defendant asked that the action be dismissed, (see Act, sec. 45),

p. 422

which the justice refused. We held this to be error, and therefore reversed the judgment. The respondent now asks" for leave to go to the Court of Appeals, that he i*nay have our decision upon this question reviewed.

We have already permitted a case involving this precise point to be taken to that court, and as the question is mainly one of practice in justices’ courts under the provisions of the act referred to, not involving the merits of an action, and in that point ot view cannot be said to affect any substantial right of a party, we do not feel disposed to multiply cases on the subject in the Court of Appeals.

For this reason the application is refused.

Motion denied.