Culliford v. Gadd

Headnote

1. Appeal — Undertaking—Sureties.

Upon failure to except to sureties within the time allowed, the undertaking becomes perfect for the purposes of the appeal.

2. Same — Failure to except.

Defendant served a second notice of appeal and undertaking with new sureties, but the papers were returned by plaintiff on the ground that the dismissal of the first appeal and entry of judgment thereon barred the bringing of a second appeal, which position was not sustained by the court of appeals. Held, that such reason for the failure to except to the sureties is not sufficient to accord plaintiff an opportunity to examine them after the time to except had expired.

Appeal from an order entered November 12, 1892, denying a motion made by the plaintiff in the alternative, first, to set aside the undertaking filed herein on the eleventh day of May, 1892, on account of fraudulent representations made by the sureties on said undertaking; or, second, to require the sureties on said undertaking to submit to an examination as to their qualifications.

The action was brought to recover one thousand dollars alleged to have been paid by the plaintiff on fraudulent representations of the defendant judgment was entered in favor of the plaintiff after a' trial before a jury, and upon appeal the judgment was affirmed by the general term of this court.

The defendant thereupon appealed to the court of appeals, but the undertaking on file was' canceled by an order of this court on account of the fraudulent justification of the sureties, and the appeal was finally dismissed by the court of appeals, and judgment entered upon the remittitur in this court. Executions were issued both against the property and the person of the defendant, but returned unsatisfied. Thereafter, on May 11, 1892, the defendant served a second notice of appeal and undertaking, with .new sureties, but said papers were returned on the ground that the dismissal of the first appeal and entry of judgment thereon barred the bringing of a second appeal.

The defendant took no further steps in the case until several months later, when he noticed the appeal in the court of appeals, whereupon the plaintiff moved to strike the case from the calendar of the court of appeals. The court, however, denied plaintiff’s motion. The plaintiff thereupon moved this court, at special term, for the order from the denial of. which this appeal is taken.