Dresser v. Brooks — 4 How. Pr. 207

Majority

p. 207

COURT OF APPEALS.

Horace Dresser, Appellant, vs. Benjamin F. Brooks, Respondent.

Headnote

The Hh rule of this court applies to appeals pending when the rule was adopted. Held, in such an appeal, where the respondent waitedforty days after the rule took effect, no copies of the case having been served, and then entered an order under rule 1, dismissing the appeal and the proceedings were remitted, &c., that he was regular.

After a return has been filed, any order made, which finally disposes of the appeal, whether, upon the merits or not, it is proper to remit the proceedings to the court below. (The case of McFarlan v. Watson, ante, page 128, seeming to recognize a different doctrine, is incorrectly reported in that respect.)

After a cause has been regularly remitted to the court below, this court has no jurisdiction to grant relief The only remedy is a new appeal.

Where too much costs are charged in such a case, the remedy is by motion to the court below.

January, 4, 1850.

Appeal from a judgment of the Supreme Court, "brought September 1, 1848.

The appellant did not serve printed copies of the case, and on the 14th August, 1849, the respondent entered an order dismissing the appeal for want of prosecution, with costs, pursuant to the 7th rule of the court; and the cause was remitted to the court below, where execution was issued on the judgment, with costs of the appeal, amounting to $85.13—of which $25 was for costs before argument, and $50 for argument. (Code, § 307.)

H. Dresser, in person, moved to set aside all the respondent’s jiroceedings for irregularity. The 7th rule was not applicable to this case, the appeal having been taken before the present rules were adopted. (See rule 19.) Second. As the judgment of the court below was neither reversed, affirmed nor modified, this was not a case for a remittitur. There was no judgment of this court within the meaning of the 16th rule of the court, or within the 12th section of the code. (McFarlan v, Watson, 4 Howard, P. R. 128.) Third. Execution has been issued for too much costs.

C. H. Doolittle, for the respondent.

The appeal was pending when the 7th rule was adopted, and when it took effect; the respondent waited forty days after the rule took effect, andno copies of the case having been served within that time, he then proceeded, under the 7th rule, and entered an order dismissing the appeal. The first question is, whether the 7th rule ap

p. 208

plies to such a case, or whether it is governed by the former practice, (see rule 19.) A majority of the judges are of opinion that the rule applies ; and consequently, that the appeal was regularly dismissed.

2. After a return has been filed, we think a remittitur is proper whenever any order is made which finally disposes of the appeal, although it may not be an order on the merits. It is a mistake to suppose the court held otherwise in McFarlan v. Watson. There was an appeal in that case from a judgment and an order, and the appeal was dismissed so far as related to the order only; and yet the respondent took a remittitur, and sent back the judgement as well as the order. This was clearly irregular, and for that reason the respondent’s proceedings were set aside.

3. Although the respondent has been regular, the appellant would be relieved on terms, if we had power to grant it; but as the cause has been, regularly remitted to the Supreme Court, we no longer have jurisdiction, and cannot grant relief. The only remedy is a-new appeal.

4. Although the respondent may have charged too much costs, the remedy for that is by motion in the court below.

Motion denied. (See Thompson v. Blanchard, post, page 210.)