Coppernoll v. Ketcham

56 Barb. 111, 1867 N.Y. App. Div. LEXIS 262

• Court: New York Supreme Court
• Decided: April 2, 1867
• Status: Published

Opinion

By the Court,

Foster, J.

Without discussing the validity of the internal revenue acts, declaring that writs, &c., by which any action shall be commenced, or'appeal taken from inferior courts,, unless stamped as required by these acts, are void, I think there are two grounds upon which the decision of the court below should be reversed.

1st. Notwithstanding the internal revenue act in terms required all stamps to instruments theretofore issued to be affixed by the collector of internal revenue, it did not deprive the state courts of the power vested in them by virtue of the 327th section of the Code, which provides “that 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 necessary to perfect the appeal, or to stay the proceedings, the court may permit an amendment, on such terms as may be just.” It is true, that prior to the notice of appeal in question, the section of the act of congress which had allowed parties, desiring to use in court instruments which had not been properly stamped, to affix such stamp in the presence of the court, and thereupon to use such instruments in. evidence, had been amended so as to require such stamps to be affixed by the collector of internal revenue, yet I think it was not intended to include such instruments as were in the nature of writs or process of courts of record; nor could it have been intended to take from the state courts the power to control and amend their process as they should deem proper, provided the revenue contemplated by the internal revenue act was secured to the general government, but that the amendment was intended to apply to such instruments as were the acts of individuals or corporations, only. (Whitley v. Leeds, 27 How. Pr. 378.)

[Onondaga General Term, April 2, 1867.

2d. After the respondent had appeared generally on the appeal, by his attorney, and had noticed the cause for trial, and had moved the trial of it, it was too late to object that the appeal had not been regularly effected. When a copias was made returnable or served on Sunday, the putting in of special bail, without knowledge of it, was a waiver of the defect, (Wright v. Jeffrey, 5 Cowen, 15;) and yet, in that case, the process was void.

Where a defendant appears, though the process be void, and he is ignorant of this fact at the time of appearance, yet the court will not afterwards set that, or the subsequent proceedings, aside. (Pixly v. Winchell, 7 Cowen, 366.) See also Seymour v. Judd, (2 N. Y. Rep. 464,) where the court held that though an appeal from a justice’s judgment was so taken as to be a nullity, yet that a general appearance would cure the defect. (See also Baxter v. Arnold, 9 How. Pr. 445; Francis v. Sitts, 2 Hill, 362; 2 How. Pr. 241; 3 id. 27; 11 id. 129; 7 id. 120; Baird v. Pridmore, 31 id. 359.)

I am also of the opinion, for the reasons given in Whitney v. Sawyer, that congress had no power to prohibit state courts from taking jurisdiction, for the want of a stamp.

The order of the county court dismissing the appeal should be reversed.

Mullin, J., dissented.

Order reversed.

Morgan, Bacon, Foster and Mullin, Justices.]