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Marshall v. Francisco

10 How. Pr. 147 Court SUPREME COURT. English

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p. 147
SUPREME COURT.
Stephen Marshall, Respondent, agt. Henry H. Francisco, Appellant.

Headnote

An order granted by a justice of this court adjudging a defendant in contempt in not paying over money as directed by a previous order, and that he pay a fine, &e., must be filed or entered with the clerk, before an appeal can be brought upon it.
Monroe General Term,
Sept., 1854.
Johnson, P. J., T. R. Strong, and Welles, Justices.
Motion to dismiss appeal from an order made by the county judge of Wayne county. The facts are sufficiently stated in the opinion of the court.
William H. Hecox, for respondent.
David Wright, for appellant.

Previous to February 18, 1854, proceedings supplementary to execution had been instituted before the county judge, upon which, on that day, the judge made an order, at his Chambers in Clyde, which, among other things, required the defendant, (the above appellant,) in substance, to pay over and apply $20 in money in his possession toward the satisfaction of the judgment in the action. On the 30th of March following the defendant was arrested by the sheriff of Wayne county by virtue of an attachment issued by the said judge for an alleged contempt, and brought before him at his office in Clyde aforesaid. The hearing on said attachment was continued until the 1st of April following, when the judge made another order adjudging the defendant in

p. 148
contempt in not paying over the said $20 as directed by the said order of the 18th of February, and that he pay a fine of $20 and $24.55 costs of the proceedings for the contempt. From this order the defendant appealed to the supreme court on the 4th of April following. The order of April 1st, which is the order appealed from, has not been filed or entered with the clerk of the county of Wayne, and for that reason we think the appeal was irregular, and should be dismissed. (Code, § 350.) It is unnecessary therefore to consider the other grounds of the motion.

The motion is granted, with $10 costs.