Russell v. Kinney — 10 Paige Ch. 315

Majority

p. 315

Russell vs. Kinney & Van Hook.

1843. August 2.

Headnote

Where a decree is made by the assistant vice chancellor, and is entered with the clerk of the circuit in which the court is held by him, the subsequent proceedings upon such decree are under the direction and control of the vice chancellor of that circuit.

If a decree is appealed from and security given to make the appeal a stay of proceedings, and the party in whose favor the decision was made proceeds upon the decree, notwithstanding such appeal, an application to set aside his proceedings for irregularity must be made to the vice chancellor who has jurisdiction of the case, and not to the chancellor.

This was an application by one of the defendants to set aside the proceedings upon a decree made by the assistant vice chancellor, upon the ground that an appeal from such decree had been duly entered and that security had been given to make such appeal a stay of the proceedings.

F. S. Kinney, for the appellant.

J. Rhoades, for the respondent.

decided that the application must be made to the vice chancellor of the circuit in which the decree appealed from was entered. He said that where a decree was made by the assistant vice chancellor and entered with the clerk of the circuit in which the court was held by such assistant vice chancellor, as directed by the statute, the vice chancellor of that circuit had the jurisdiction and control of the subsequent proceedings upon that decree. And that if a party in whose favor a decree is made proceeds thereon after an appeal has been entered, and the proper steps have been taken to make such appeal a stay of proceedings, an application to set aside his proceedings for irregularity must be made to the vice chancellor having the direction and control of such proceedings, and not to the chancellor.