Jeans v. Milford

3 Del. 48

• Court: Superior Court of Delaware
• Decided: July 5, 1839
• Status: Published

Opinion

The Court.

The case seems to be omitted in the act of assembly. Provision is made in case of appeal by a plaintiff below, for the prompt trial of the cause, because a' delay affects his rights; but where the appellee is the plaintiff below, the appeal is necessarily a supersedias of the judgment.

J. A. Bayard, for appellant. Gray, for appellee.

The plaintiff below has not been cited. No rule can be laid on him to file his narr., and there seems to be an equal impropriety in ordering on a trial, or nonsuiting him. If we could do so, it would be only on the ground that the plaintiff, having commenced his action below, in which suit the appeal is regularly taken, might perhaps be regarded as a party in this the appellate court.

Without deciding this question, we prefer to take the appearance of Mr. Gray, as it seems that his client has really not had notice of the appeal, though resident in the county; and continue the cause.