Brown v. Heacock

9 How. Pr. 345

• Court: New York Supreme Court
• Decided: January 15, 1854
• Status: Published

Opinion

By the Court—Shankland, Justice.

This motion can not be sustained. Whether a case or exceptions were made and served in time, or not, affects not the regularity of the appeal. The appellant may appeal from a judgment whether he makes a case or exceptions, or not. He may on such appeal reverse the judgment for causes appearing on the face of the record; as, for instance, that the complaint does not state facts sufficient to constitute a cause of action. (Code, § 148.)

The appeal, in this case, was regular, according to the pro visions of the Code, §§ 327, 332.

If the defendant has failed to make and serve/his case in season, or if he has failed to file it with the clerk within the time prescribed by rule 17, he is deemed to have abandoned it, and must either discontinue his appeal or go to argument on the judgment record alone. But the appeal is not lost by reason of the loss of his case or exceptions.

It is unnecessary to the decision of this motion to examine whether the case was deposited in the post-office at Buffalo in twenty days after service of the notice of judgment. If the defendant shall need relief, on account of laches, he must move for it, so that the plaintiff can meet the application by opposing affidavits, if he shall be so advised. This motion to dismiss the appeal is denied with ten dollars costs.