Hyperlawhypertext legal databasebeta People ex rel. Smith v. Village of Nelliston 79 N.Y. 638

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People ex rel. Smith v. Village of Nelliston

79 N.Y. 638 Court N.Y. Decision date 1879-12-16 English

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p. 638
The People ex rel., John W. Smith, v. The Village of Nelliston.[1]

Headnote

This court does not lose jurisdiction of a cause brought here upon appeal until the remittitur has been filed in the court below, and that court has taken some action thereon.
Accordingly held; that the court had jurisdiction to make an ex parte order, correcting a remittitur, which had been filed with the clerk of the court below ; but upon which no action had been taken in that court. Costs of appeal in proceedings by common law certiorari are not allowable; whether the proceedings come here upon appeal from a judgment, or from an order superseding the writ.
(Argued December 9, 1879 ;
decided December 16, 1879.)
This was a motion to vacate an order of this court, directing the attorneys for defendant to return the remittitur for correction as to costs, if erroneous. It appeared that the remittitur had, at the time this order was made, been filed with the clerk bcloxv ; but it did not appear that any action had been taken thereon by the court bcloxv, an order was then made ex parte, correcting the remittitur as to costs.
J. IS. Dewey, for motion.
D. M. K. Johnson, opposed.

There is some uncertainty in the practice as to the precise time when this court loses jurisdiction of a cause brought here upon appeal: (Burkle v. Luce, 1 Com., 239; Martin v. Wilson, id., 240; Palmer v. Lawrence, 1 Seld., 455; Seacord v. Morgan, 17 How. Pr., 394 ; Wilmerdings v. Fowler, 15 Abb. Pr. [N. S.], 86; Cushman v. Hadfield, id., 109.) For the purpose of settling this uncertainty, we now hold that jurisdiction in this court is not lost until the remittitur has been filed in the court below, and that court has taken some action thereon.

p. 639
" This court, therefore, had jurisdiction to make the order now complained of.

Wo have carefully considered the matter of costs, and are of opinion that the respondents should not have costs. Their allowance was not in conformity with our actual decision. The costs on appeal here claimed were in a certiorari proceeding, and it matters not in what form the proceeding came before us, whether upon appeal from a judgment or from an order superseding the writ. As we have repeatedly decided, the costs arc not allowable.

The motion should be denied.

All concur.

Motion denied.