Townsend v. Keenan — 2 Hilt. 544

Majority

p. 544

John Townsend v. William Keenan.

Headnote

After an appeal from the Marine or district courts has been once noticed for argu. ment by either party, and regularly placed on the calendar, it remains thereor, without further notice, and until finally disposed of by the court.

An appeal from a district court was noticed for argument, and placed on the calendar by the appellant. On the case being called, at a subsequent term, the appellant not appearing, the judgment appealed from was affirmed by default, on motion of the respondent, and without any proof being required of his having noticed the appeal for argument; Held, regular.

At Special Term, March 16, 1859.

Motion to vacate a judgment entered at general term, affirming a judgment of a district court. It appeared that the defendant appealed from a judgment rendered against him, and, after procuring the return of the justice to be filed, noticed the appeal for argument, and had it placed on the general term calendar for January last. The appeal not having been heard or disposed of at that term, it was continued on the calendar for the succeeding February term, when, on its being called by the court, no one appearing for the' appellant, the judgment was affirmed on the application of the respondent. In entering this judgment, the only notice of argument filed was the notice served by the

p. 545

appellant for the .January term. The appellant moved to vacate the judgment upon the ground that his default had been irregularly taken, inasmuch as the appeal had not been noticed for argument by the respondent.

Philip Levy, for the motion.

John Townshend, opposed.

The appeal herein from the justice of the Sixth District Court was noticed for argument, on the part of the appellant, for January term, and was accordingly placed upon the calendar, there to continue without further notice, and until finally disposed of by the court. Code, § 364. The appellant failed to ■ appear when the case was regularly called at the last general term, and the respondent asked for and obtained an affirmance of the judgment. There was no irregularity in his proceedings, and, as the appellant fails to show any excuse for his neglect, no reason exists for vacating the judgment thus entered.

An appeal from a justice’s judgment differs from all other appeals, in not requiring to be noticed by either party after it has been regularly placed upon the calendar. By a special statutory provision, (Code, § 364), it remains upon the calendar until finally disposed of by the court, and unless the appellant appears when it is regularly called, the respondent is entitled to an affirm: anee of the judgment. This is the usual course, and was followed in the present case.

Motion denied, with costs.