Gridley v. Daggett — 6 How. Pr. 280

Majority

p. 280

COURT OF APPEALS.

Gridley, Respondent, agt. Daggett, Adm’r, &c. and another, Appellants.

Headnote

There must be an actual determination of the cause by the court below, in order to sustain an appeal to this court.

That is, a cause submitted to the court below on stipulation of the respective attorneys, and judgment entered pro forma for the purpose of bringing an appeal to this court, will not answer.

January Term, 1852.

This was an appeal from a judgment of the Supreme Court in the 5th judicial district.

D. H. Marsh, for the appellant,

commenced the argument. During his opening the court inquired how this cause got here? Mr. Marsh stated that it was submitted by stipulation of the respective attorneysc to the general term of the Supreme Court; and he had understood that in consequence of one of the justices being a relative of one of the parties, and another having been counsel in the cause, the court did not examine the case, but at the suggestion of counsel, under the stipulation, judgment was entered, with a view to an appeal to this court.

N. Hill Jr., for respondent,

thought the appeal did not come within the provisions of the Code, which required an actual determination by the Supreme Court; still, he did not wish to take the objection. If the court would hear the cause, he was willing to argue it upon its merits.

said the court were of opinion they had no discretion, the statute was imperative—there must be an actual determination by the court below (Code, § 11).

Appeal dismissed, without costs.