Rollins v. Wood

Headnote

Code of Civil Procedure, § 1351— notice of appeal — what not a sufficient copy of the judgment.

MotioN to dismiss an appeal from a judgment, for irregularity,, on the ground that the appeal was not brought in time.

The judgment appealed from ivas entered on the report of a referee in favor of the defendant for a sum of money, and costs.

It was perfected and docketed on 17th August, 1878. On twenty-second August defendant’s attorney served upon the plaintiif’s attorneys a written notice thereof, which was in the following-words: “ Take notice that the judgment roll was filed, judgment perfected and docketed in the office of the clerk of the county of Steuben in favor of the defendant, against the plaintiif, on the 17th day of August, 1878, for damages - - $195 91

“Costs,.- - 130 85

“Judgment.$326 76.”

No copy of the judgment, beyond what is contained in the notice, was served. The notice of appeal was served 27th December, 1878.

The court at General Term, held, “ that the notice of judgment was not a copy of the judgment, within the meaning of section 1351 of the Code of Civil Procedure, and that as no copy of the judgment was served, as required by that section, the service of notice of entry of judgment did not set the time within which to appeal running, and the appeal, was taken in due season.”