Woodcock v. Bennet — 20 Johns. 501

Majority

p. 501

David Woodcock, Appellant, against Silas Bennet, Respondent.

Headnote

A cause can-0n the caiend0arb°f until after the pfal¡addressed and*the answer of the defendant to such appeal, have guíaviyfiíédTn this Court.

Notices, copies of orders, bTsérved. on the counsel for the parties in the causes,, or on the ff- gents of the at" pa“uJss;°bfut,hs theiauer case^ service is allowed.

321 BUTLER, for the appellant, moved to strike this cause ° the calendar, on the ground, that the appellant not hav g filed his petition of appeal, addressed to the Court, it not in a state to be placed on the calendar of causes to be heard. It appeared, that the register of the Court of Chancery had transmitted to this Court the original appeal filed in that Court, addressed to the Chancellor, together with a transcript of the proceedings in the cause m that Court. The respondent then filed, in this Court, his answer to a petition of appeal, (though no such appeal had been filed here5) and the cause was placed on the calendar by the clerk.

Sherwood, contra.

The appellant must file his petition of appeal, addressed to this Court, before it can be possessed of the cause. By the rules of this Court,^[1] that petition must be filed in the office of the register, or assistant register, with whom the decree, or order appealed from, has been entered ; and he annexes to it the decree, or order appealed from; and the petition of appeal, with the matter annexed, is to be brought into this Court and filed. The answer of the respondent to that petition, is, then, to be filed in this Court; and the cause being at issue, may then be placed on the calendar. The motion, in the present case, must, therefore, he granted ; but if the respondent is desirous of hastening the appellant, he may enter a rule, in this Court, requiring the appellant to file his petition of appeal in eight days, or be precluded.

* Vide 16 Johns. Rep. 604 , Rule VII.

p. 502

Sherwood, said, he would take a rule accordingly, and inquired whether a service of it upon the counsel for the appellant, would be sufficient, as his solicitor resided in a distant county.

Platt, J. said, that it was made a question, at a former session of the Court, whether such a service was good, and the Court expressed their opinion that it was sufficient.

Papers in this Court may be served on the counsel in the cause.

Sherwood then asked for a shorter rule than eight days, but the Court said he must take the usual rule.

Note. Saturday, September 7. The Chief Justice read an order respecting the service of papers in this Court, which the Court adopted, and which is, as follows : “ Ordered, that the service of all notices, copies of orders, and affidavits, in this Court, during the sitting of the Court, may be made on the counsel for the parties, and, also, on the agents for the attorney of the parties; but when made on- agents, double the time of service shall be allowed.’'

The Chief Justice said, that by agents, was meant agents in the Supreme Court.