Parks v. Murray

Headnote

After an appeal has been perfected to this court, a motion, under the Code of Civil Procedure (§ 1808), to compel the appellant to file a new undertaking should be made here, not in the Supreme Court; that court has no jurisdiction to grant the motion.

Motion to dismiss appeal.

The following is the opinion:

“ The motion to dismiss the plaintiff’s appeal must be-denied. It was founded upon his omission to comply with an order of the Supreme Court, made December 19, 1881,' directing him to file a new undertaking on or before January 10, 1888. Such order was made after the plaintiff had perfected his appeal to this court by filing and serving his notice of appeal and the requisite undertaking. The Code provides explicitly that when those acts are done the appeal is-perfected. (Sec. 1326.) Thence forward the jurisdiction of this court attaches and the authority of the Supreme Court, except as specially preserved, ends. By section 1308 the court in which the appeal is pending is authorized to require the filing of a new undertaking and dismiss the appeal for noncompliance with the order. In this case the motion should have been made before us and not in the Supreme Court. The only authority given to require a new undertaking is vested in this court when an appeal to it has been duly perfected, for it then becomes the only court in which the appeal is pending. The Supreme Court cannot make it outside of

the authority given by the Code because of its inherent control over its own records, since this is not a question of correcting or reforming an old record, but of making an entirely new one. It is suggested that we have already dismissed the plaintiff’s appeal as against another of the defendants’ for non-compliance with the same order, (107 H. Y. 674.) Thau is true; but the question of its validity was not then raised, and the jurisdiction of the Supreme Court was conceded. So long as the party affected by it did not challenge it, we were justified in disregarding the inquiry. Here the question is distinctly raised.

“ The motion should be denied.”