McFarlan v. Watson

Headnote

It seems, that under the code (§ 12) a remittitw, sending the proceedings to the court below, is not authorized on the dismissal of cm appeal. It is to be made only in cases where the court give judgment (of affirmance or reversal, or any modification of the judgment or decree of the court below, as the cause may be,) upon the merits.

—The appeal in this cause was from a judgment in the Superior Court of the city of Hew York, and from an order denying an application for a re-settlement of the bill of exceptions therein. The return of the Superior Court was filed April 11, 1849.

At the last July term of this court, a motion was made by the respondent, on notice, to dismiss the appeal, so far as it related to the order appealed from. The motion was granted, with costs of the appeal and of the motion. The remittitur, containing the entire return upon the appeal from the judgment as well as from the order appealed from, was thereupon sent to and filed in the office of the clerk of the Superior Court. The

respondent then gave notice to the appellant, requiring him to cause the proper return, upon the appeal from the judgment, to be filed with the clerk of this court within twenty days, or that he would be deemed to have waived the appeal. On the 11th day of September, upon affidavit of service of notice, and a certificate of the clerk that no return had been filed since the remittitur was sent to the clerk of the court below, the respondent entered a rule with the clerk of this court, dismissing the appeal for want of prosecution.

At this term, the appellant moved, upon notice, that the remittitur and order entered on the 11th of September be vacated.