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CHAPTER III.

OF THE FORMAL PROCEEDINGS ON APPEALS TO THE COURTS OF

HIGHER JURISDICTION.

The formal proceedings common to appeals in the higher tribunals in general, or to any large class of those appeals, are proposed to be considered in the present chapter; the separate practice of each peculiar jurisdiction being treated of subsequently, under its proper head. .

In appeals of whatever nature, whether from a judgment or an order, the service of a notice of appeal is, in all cases, the first proceeding. The form and incidents of this notice are thus prescribed by section 327 :

§ 327. An appeal must be made by the service of a notice in writing, on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof. When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit through mistake, to do any other act neeessary to perfect the appeal or to stay proceedings, the court may permit an amendment, on such terms as may be just.

The notice to be so given need not state the grounds relied on. “ It is enough if it specify what part of the judgment it is intended to review upon appeal.”— Wilson v. Allen, 3 How. 369; 2 C. R. 26; 7 L. O. 286.

Where, however, part only of a judgment is sought to be reviewed, the portion so impeached must be distinctly and fully specified upon the notice, as, in that case, only such parts of that judgment as are actually appealed from, can be reviewed.

- Kelsey v. Western, 2 Comst. 500. The principle of these two cases is equally applicable to appeals from orders.

Forms of the usual notice of appeal will be found in the Appendix. The name of the court must be properly stated, or the notice will be altogether bad, under the principle laid down in Clickman v. Clickman, 1 Comst. 611 ; 3 How. 365 ; 1 C. R. 98. The notice must, as will be seen, be served, both on the adverse party, and on the clerk of the court in which the judg. ment is entered. If omitted to be served on either, within due time, the defect will be fatal, and is one that cannot be waived. - Westcott v. Platt, 1 C. R. 100.

Service of the notice may be made upon the adverse party by mail, in the usual manner, where such service is admissible. This is, however, not the case as regards service on the clerk, to render which regular, the notice must have been actually received by him within due time. The defect was, however, held to be amendable, under this section, in connection with sec. 173, in Crittenden v. Adams, 5 How. 310; 3 C. R. 145. This decision was under the Code of 1849, and the view taken as to the powers of the court to grant an amendment, was more liberal than those enounced in other cases hereafter cited. The last clause of the section, as recently amended, seems now, however, to remote all doubt as to the present powers of the courts, to grant amendments of this nature, wherever proper.

The duplicate notice must be served upon the attorney of record in the court below, and not on the party. If served on the latter, and he does not appear, so as to give the court jurisdiction, the appeal will be a nullity. The objection, being to the jurisdiction, is one which the party may take at any time, if such party have not waived it by appearing, or by other proceeding giving the court jurisdiction.— Tripp v. De Bow, 5 How. 114; 3 C. R. 163.

An appeal, taken by service of the notice on the same day on which the judgment was entered, and before the hour when the costs were adjusted and the judgment roll filed, was decided to be good, in Blydenburgh v. Cotheal, 4 Comst. 418; 5 How. 200; 3 C. R. 216:4" As a general rule, the court does not enquire into fractions of a day, except for the purpose of guarding against injustice.-Small v. McChesney, 3 Cow. 19; Clute v. Clute, 2 Denio. 263. We think that a sufficient answer to this motion, (i. e., 10 dismiss the appeal, as taken too soon)."

A notice of appeal and undertaking, given before the actual entry of judgment appealed from, and which described that judgment as entered on the day of trial, the undertaking being given only for the amount of the verdict, have, however, been held to be clearly irregular.--Bradley v. Van Zandt, 3 C. R. 217. A motion to dismiss an appeal, on the ground of defects

of this or any other nature, cannot, however, be entertained by the court below; it must be made to the appellate tribunal. Decisions to the same effect as the above were made in McMahon v. Harrison, 5 How. 360, and Lentilhon v. The Mayor of New York, 3 Sandf. S. C. R. 721; 1 C. R. (N. S.) 111.

An appeal could not be converted into a notice of rehearing under the old practice, on a motion to amend, even although the mistake had arisen from the misconception of counsel.Wilson v. Onderdonk, 3 How. 319; 1 C. R. 64. See, likewise, Church v. Rhodes, 6 How. 281, subsequently cited.

The next proceeding to be considered, in reference to appeals in general, is the security necessary to be given thereon. In all cases where that appeal is to the Court of Appeals, or from the judgment of an inserior to that of a superior tribunal, the first description of security below mentioned must be given, unless waived by written consent on the part of the respondent. This was also the case under the Code of 1849, on appeals from a single judge to the general term of the same court. On the amendment of 1851, however, the appellant was relieved from this burthen, security being no longer necessary in these cases, as regards the taking of the appeal, as such. If, however, a stay of proceedings be required, security is still necessary to be given, as after detailed.

In appeals from orders to the general term, security is not required. See cases hereafter cited on that head. This principle does not, however, hold good on the ulterior appeal from the decision of the latter to the court of higher jurisdiction, if resorted to.

The first provision in relation to the giving of security on an appeal, when taken, is that contained in sec. 334, which runs as follows:

$ 334. To render an appeal effectual for any purpose, a written undertaking must be executed on the part of the appellant, by at least two sureties, to the effect, that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars; or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal. Such undertaking or deposit may be waived by a written consent on the part of the respondent.

Whatever the number of parties to a suit, and though an order be made therein, directing the payment of different sums of money to different defendants, such order will be considered as only one judgment for the purposes of appeal, and one undertaking only, under this and the section next commented upon, will be necessary.--Smith v. Lynes, 2 Comst. 569, 4 How. 209.

Where, however, an appeal had been taken to the Court of Appeals, from two orders, it was held that two undertakings, in two hundred and fifty dollars each, should be given under sec. 334 ; and that one, though reciting and in terms embracing both such orders, was not sufficient.-Schermerhorn v. Anderson, 1 Comst. 430 ; 2 C. R. 2.

The foregoing undertaking is, as above shown, obligatory in every case in which security is not expressly waived ; and no form of security which does not provide as above, in addition to its other requisites, will be available. See cases cited below.

On an undertaking being given, or deposit made, as above accompanied, in the former case, by the affidavit of the sureties as subsequently required, the appeal may then be looked upon as perfected, so far as regards the obtaining a revision of the judgment pronounced, subject of course to the respondent's right to require the sureties to justify, as below mentioned.-V. Firemen's Ins. Co. of Albany v. Bay, below cited. Where, however, a stay of execution on the judgment is desired, the following further conditions must be complied with.

If, however, the party conclude to pay the judgment instead of giving security, his right to appeal will not be impaired by such payment, unless it have been made by way of compromise and agreement to settle the controversy.-Wells v. Danforth, 1 C. R. (N. S.) 415.

In the first place, sec. 335 provides for stay of execution upon an ordinary money judgment as follows:

$ 335. If the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant, by at least two sureties, to the effect, that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant, upon the appeal.

In cases, however, of appeal from a single judge, to the general term of the same court, a discretionary power to modify

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the security to be given, in order to a stay of proceedings, is conferred by sec. 318, as hereafter noticed.

Where an undertaking is given with a view to stay proceedings as above, security must also be put in under sec. 334, or the appeal will not lie at all. The latter is required in every

Both may be contained in the same instrument, (see sec. 340,) but both must be executed, if the appellant would stay proceedings on the judgment.-Wilson v. Allen, 3 How. 369 ; 2 C. R. 26; 7 L.O. 286 ; Langley v. Warner, 1 Comst. 606; 1 C. R. 111; 3 How. 363.

The amount due on the judgment appealed from, must be distinctly stated in an undertaking of this nature, in order to form a groundwork for the necessary affidavit of justification under sec, 341.-Harris v. Bennet, 3 C. R. 23.

If the judgment appealed from, direct the assignment or delivery of documents, or of personal property, execution will not be stayed unless, as provided by sec.336, the things required to be assigned and delivered are brought into court, or placed in the custody of such officer or receiver as the court shall appoint ; or unless an undertaking be given in such amount as the court, or a judge thereof, or county judge shall direct, to the effect that the appellant will obey the order of the appellate court, when made.

If the judgment appealed from, direct the execution of a conveyance, or other instrument, a stay will not be effected until such instrument shall have been executed, and deposited with the clerk of the court with whom judgment is entered, to abide the judgment of the appellate court; sec. 337.

Where the sale or delivery of possession of real property is directed, execution will not be stayed, unless, under sec. 338, an undertaking be given to the effect that, during the pos. session of such property by the appellant, he will not commit, or suffer to be committed any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the property, from the time of the appeal, until the delivery of possession thereof pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the

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