COURT OF APPEALS.

HORACE DRESSER, Appellant, vs. BENJAMIN F. BROOKS, Respondent. The 7th rule of this court applies to appeals pending when the rule was adopted. Held, in such an appeal, where the respondent waited forty days after the rule took effect, no copies of the case having been served, and then entered an order under rule 7, dismissing the appeal and the proceedings were remitted, &c., that he was regular.

After a return has been filed, any order made, which finally disposes of the appeal, whether. upon the merits or not, it is proper to remit the proceedings to the court below. (The case of McFarlan v. Watson, ante, page 128, seeming to recognize a different doctrine, is incorrectly reported in that respect.)

After a cause has been regularly remitted to the court below, this court has no jurisdiction to grant relief. The only remedy is a new appeal.

Where too much costs are charged in such a case, the remedy is by motion to the court below.

January, 4, 1850.—Appeal from a judgment of the Supreme Court, brought September 1, 1848.

The appellant did not serve printed copies of the case, and on the 14th August, 1849, the respondent entered an order dismissing the appeal for want of prosecution, with costs, pursuant to the 7th rule of the court; and the cause was remitted to the court below, where execution was issued on the judgment, with costs of the appeal, amounting to $85.13 of which $25 was for costs before argument, and $50 for argument. (Code, § 307.)

H. DRESSER, in person, moved to set aside all the respondent's proceedings for irregularity. The 7th rule was not applicable to this case, the appeal having been taken before the present rules were adopted. (See rule 19.) Second. As the judgment of the court below was neither reversed, affirmed nor modified, this was not a case for a remittitur. There was no judgment of this court within the meaning of the 16th rule of the court, or within the 12th section of the code. (McFarlan v, Watson, 4 Howard, P. R. 128.) Third. Execution has been issued for too much costs.

C. H. DOOLITTLE, for the respondent.

BRONSON, Ch. J.-The appeal was pending when the 7th rule was adopted, and when it took effect; the respondent waited forty days af ter the rule took effect, and no copies of the case having been served within that time, he then proceeded, under the 7th rule, and entered an order dismissing the appeal. The first question is, whether the 7th rule ap

plies to such a case, or whether it is governed by the former practice, (see rule 19.) A majority of the judges are of opinion that the rule applies; and consequently, that the appeal was regularly dismissed.

2. After a return has been filed, we think a remittitur is proper whenever any order is made which finally disposes of the appeal, although it may not be an order on the merits. It is a mistake to suppose the court held otherwise in McFarlan v. Watson. There was an appeal in that case from a judgment and an order, and the appeal was dismissed so far as related to the order only; and yet the respondent took a remittitur, and sent back the judgement as well as the order. This was clearly irregular, and for that reason the respondent's proceedings were set aside.

3. Although the respondent has been regular, the appellant would be relieved on terms, if we had power to grant it; but as the cause has been regularly remitted to the Supreme Court, we no longer have juris. diction, and cannot grant relief. The only remedy is a new appeal.

4. Although the respondent may have charged too much costs, the remedy for that is by motion in the court below.

Motion denied. (See Thompson v. Blanchard, post, page 210.)

COURT OF APPEALS.

WOLFE and others vs. VAN NOSTRAND.

An additional allowance pursuant to § 308 of the code, cannot be made by this court. It is confined to the court of original jurisdiction, and in reference to the trial in that court.

January 15, 1850.-WOLFE and others brought ejectment in the Superior Court of the city of New York, where judgment passed for the defendant. The plaintiff then brought a writ of error to this court, after July 1, 1848, and in September last the judgment was affirmed.

S. STEVENS, for the defendant in error, now moved for an additional allowance, pursuant to the 308th section of the code. He said a writ of error was a new suit, and there has been a trial in this court within the definition of a trial as given by the code. He cited sections 8, 252, 308 and 309.

W. KENT, for plaintiff in error.

BRONSON, Ch. J.-We think an additional allowance, beyond the costs given by the 307th section of the code, can only be made by the court of original jurisdiction, and in reference to the trial in that court. Motion denied.

COURT OF APPEALS.

ALEXANDER SMITH, Appellant, vs. BENJAMIN LYNES and three others. On an appeal from a judgment, where one of several defendants, who appeared by one attorney, recovered a certain sum, and three other defendants, who appeared by a different attorney, recovered a different sum against the plaintiff, both sums included in one record: and on bringing the appeal the plaintiff gave an undertaking pursuant to § 335, covering both sums, and also one pursuant to § 334. Held, sufficient. Not necessary to give two undertakings pursuant to § 334, to the defendants.

January 15, 1850.-Smith brought replevin against Lynes and three others in the Superior Court of the city of New York: Lynes appeared by one attorney, and the three other defendants by another-the two attorneys having no connection in business. Judgment was rendered that Lynes recover $2008.78 against the plaintiff, and that the three other defendaants recover against the plaintiff $412.93. There was but one judgment record. The plaintiff appealed to this court; and gave an undertaking pursuant to the 335th section of the code, to pay the two sums adjudged to the defendants, in case the judgment should be affirmed and he also gave another undertaking, pursuant to the 334th section of the code, to pay all costs and damages which might be awarded against him on the appeal, not exceeding $250.

B. W. BONNEY, for the respondent Lynes, moved to dismiss the appeal, on the ground that there should have been two undertakings in the sum of $250 each; one to Lynes, and one to the other three defendants.

S. STEVENS, for appellant.

BRONSON, Ch. J.-There is but one judgment, though it is for two sums of money and as the appellant has given security for both of those two sums, and a further undertaking for all costs and damages which may be awarded against him, not exceeding two hundred and fifty dollars, there has been a full compliance with the statute. Motion denied.

COURT OF APPEALS.

THOMPSON, Respondent, vs. BLANCHARD & WHEELER, Appellants.

An appeal is "perfected" within the meaning of the code, (and Rules 2d and 7th of this court which follow the code,) when the proper undertaking, with an affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party, and on the clerk with whom the judgment or order was entered. And the twenty days under rule 2d, and the forty days under rule 7th, commence running from that time.

January 15, 1850.-Notice of the appeal was given to the respondent who was plaintiff in the court below, on the 2d day of November last; and on the 5th day of that month notice of the appeal was served on the clerk, and the proper undertaking was filed. On the 27th day of the same month the respondent entered an order, under the 2d rule of this court, dismissing the appeal for want of prosecution, on the ground that no return had been filed within the twenty days allowed for that purpose.

N. HILL, Jr., for the appellants, moved to vacate the order dismissing the appeal on several grounds; and, among others he said the order was entered too soon. The appellant has twenty days after the appeal is perfected to cause the return to be filed, and the appeal is not perfected, nor is there any stay of proceedings, until after the ten days allowed for excepting to the sureties have elapsed; and if there be an exception within ten days, then the appeal is not perfected, nor is there any stay of proceedings until the sureties have justified. If the appellant wants a stay of proceedings in the meantime, he must obtain an order for that purpose in the court below. He cited rule 2d and the following sections of the code, 340, 341, 196, 334, 332, 343, 339, 328. S. STEVENS, for the respondent, cited sections 334, 335, 341, 342 of the code.

BRONSON, Ch. J.-In using the word "perfected," the second rule of this court follows the code; and although there is room for doubt, we think an appeal is perfected, within the meaning of the code, when the proper undertaking, with an affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party, and on the clerk with whom the judgment or order was entered. It is true that the appeal may still fail, should there be an exception to the sufficiency of the sureties, and they should not justify, (§ 341.) But when the party has executed the undertaking and given notice, he has done all in his power to perfect the appeal; and the proceedings ought then to be stayed, with

out requiring him to get an order for that purpose. And if the appeal is deemed perfected for the purpose of a stay, it ought also to be deemed perfect for the purpose of requiring the appellant to take the next step in the cause. The twenty days allowed by the second rule for procuring a return (and the forty days allowed by the seventh rule for serving cases,) should commence running from that time. The order dismissing the appeal was not, therefore, taken too soon.

But on the facts disclosed in the papers, which I need not repeat, we think the respondent waived the order dismissing the appeal, and was not afterwards at liberty to set it up. On this ground the motion should be granted.

There has been no return nor remittitur in this case, as there was in Dresser v. Brooks, (ante, page 207,) and vacating the order dismissing appeal will leave the parties in the same position as though the order had never been entered. Motion granted.

NOTE.-A remittitur cannot be made on the dismissal of an appeal under rule 2d, for the reason that no return has been filed. The omission to file the return, is the ground for dismissing the appeal.

COURT OF APPEALS.

THE FARMERS' LOAN AND TRUST COMPANY, Appellants, vs. CARROLL and others, Respondents.

In all cases where the suit was commenced before the code and determined afterwards, the parties must govern themselves on appeal, as far as may be practicable, by the new machinery: but where that will not answer the purpose, the parties are at liberty to resort to the former practice, unless that course has been plainly forbidden by the Legislature.BRONSON, Ch. J.

[See the different objections raised and considered in this case. 1st. That there can be no appeal in those cases where jurisdiction vested in the Supreme Court by force of the constitution. 2d. A defective or imperfect return, it being made according to the old prac tice. 3d. The decree should have been enrolled. 4th. The omission to print the clerk's return entire, including his certificate or verification.]

January 15, 1850.-N. HILL, Jr., for the respondents, moved to dismiss the appeal on several grounds, which are sufficiently stated in the opinion of the court.

W. C. NOYES, for the appellants.

BRONSON, Ch. J.-This is an old suit, and most of the objections which have been taken to the proceedings of the appellants, spring out of the repeated changes which have recently been made in the laws which govern