Hand v. Callaghan

Motion by respondent to dismiss appeal for (1) failure to serve a proper notice of appeal; (2) failure to file a return as required by law ; (3) failure to serve a notice of argument. The appeal is from a judgment of a district court rendered May 10, 1894, and the judgment was satisfied on execution. The notice of appeal was served June 2, 1894, and the return of the justice was filed November 13, 1894. Neither party has placed the cause on the general term calendar, and the motion to dismiss the appeal is made on five days’ notice. The motion must be denied because a notice of motion of five days is insufficient. Code, § 780 ; Salters v. Sheppard, 11 Wkly. Dig. 189 . An additional reason for denying it is that motions to dismiss appeals from district courts for defects in the appeal or service of notice thereof, or for failure to file return, must be made at the special term. Eules 9 and 11 of the Common Pleas ; Eules of Courts of Eecord, 1888, p. 374. Failure of appellant to serve notice of argument is by itself no ground for dismissing an appeal. Despondent, having given notice of argument, should have placed the cause on the general term calendar, and brought the appeal to a hearing. Notice of argument may be given for the additional term in April next, and a note of issue filed therefor.

This motion is denied, with $10 costs to appclient to abide event of appeal.

All concur.