Kelsey v. Campbell

14 Abb. Pr. 368, 38 Barb. 238

Opinion

By the Court.

*—Brown, J.

On the 26th of July, 1861, the plaintiff recovered a judgment in this court against Robert M. Ward, Walter S. Gove, and Edward P. Morris, for the sum of $687.69, which was docketed in Kings county clerk’s office on the same day. On the second day of September of the same year, he issued an execution against the property of Ward, Gove & Morris, with directions to collect the whole amount of the judgment with interest, which execution was placed in the hands of the defendant in this action, the sheriff of Kings county, to be executed, returnable on the first day of November thereafter. The defendants in the execution had goods and chattels within the county of the defendant, whereof he could have made the sum directed to be collected upon the execution. But he Omitted to do so, and neglected to return the same at the return-day thereof. Whereupon, the plaintiff'brought this action against the sheriff, and demanded judgment against him for the sum of $687.69, with the interest. The action was tried before Mr. Justice Lott, at the Kings county circuit, where the foregoing facts were not disputed. It appeared on the part of ■the defendant, that a notice of appeal, with undertaking, affidavit, and certificates of acknowledgment, were filed in the office of the clerk of the county of Kings, dated the 29th of July, 1861, the day they were filed; and copies thereof were on the next day duly served on the attorneys for the plaintiff. Notice of exceptions to the sureties upon the undertaking was, on the first day of August, duly served by the plaintiff’s attorneys upon the attorney for the defendants in the judgment. The sureties failed to justify, and, on the 14th of September thereafter, notice was given to the sheriff that the undertaking was not perfected, and the court afterwards denied a motion made by the defendants for leave to the sureties to justify, a copy of which order denying the motion was, on the 20th of the same month, served upon the sheriff. Notice was also given to the sheriff that the sureties having failed to justify, he was required to proceed to the execution of the writ. On the 18th of September, a new notice of appeal, undertaking, affidavits of j ustification, and certificate of acknowledgment, were filed in the office of the clerk of Kings county, copies of all which papers, with a certificate of such clerk that the same were true copies of the original, were on the same day served upon the defendant, and the plaintiff also had due notice thereof. No exception was taken to the sureties in the last-named undertaking, nor was the last-mentioned appeal vacated or set aside. But on the next day thereafter, the plaintiff returned to the attorney for the judgment-debtor the copy of the last-named undertaking served upon him, with notice that he refused to receive the same. These facts constituted the defence. The Circuit Judge, sitting without a jury, found that the last-mentioned appeal and proceedings operated as a stay of proceedings under the execution, and were a justification and defence to the sheriff for not collecting the money upon the execution. He ordered judgment for the defendant, from which the plaintiff 'appealed to the general term.

The plaintiff contends that there can be but one appeal, which is taken by the service of the notice of appeal. If the appellant omits to file the undertaking, or the sureties thereon fail to j ustify, the appeal becomes ineffectual to stay the proceedings; but for all other purposes, and especially for the purpose of preventing a new appeal which shall become effectual, the first appeal remains in full force. He takes a distinction between an appeal generally, and an appeal which shall effect the only object and end for which an appeal is taken, that is, to remove the action into the appellate court and be reheard and determined. The plaintiff’s theory will be sufficiently stated by reference to the facts of the present case. The defendant served his notice of appeal regularly and in due season. But the sureties omitted to justify and prove their ability to indemnify the plaintiff within the time limited by the Code, and the court refused them leave to do so after the time had elapsed. The plaintiff contends that the defendant cannot discontinue or renew his appeal with sureties who will justify in due season, and that the first appeal remains a bar and a barrier to all future action of the kind. This theory is not borne out by the provisions of the»Code. If, in addition to the appeal, it be intended to stay the execution of the judgment, the undertaking must be of the nature and kind provided for in § 335 ; but if it be a mere appeal, leaving the respondent to proceed to the execution *> of the judgment, the stipulation of the undertaking must be of another kind, as directed in § 334. But this latter section declares in very emphatic language, that to render an appeal effectual for any purpose, a written undertaking must be executed on the part of the appellant, with at least two sureties to the effect, &c.; or the sum mentioned in the section must be deposited with the clerk. An undertaking upon an appeal shall be of no effect, unless accompanied by the affidavit of the sureties, that they are each worth double the amount specified therein. If excepted to, they are to justify within ten days, or the appeal shall be regarded as if no undertaking had been given (§ 341).

An appeal without an undertaking amounts to nothing, and accomplishes nothing. For the section requiring an undertaking declares, that without it the appeal shall not be effectual for any purpose. An appeal which is not effectual for any purpose is a nullity. It effects nothing. It makes no change whatever in the proceedings, but leaves them in the same condition as they were before the notice of appeal was given. This is too plain for argument. So that when the sureties in the undertaking of the 29th of July, 1861, failed to justify, and the court, upon motion, refused them permission to justify, the notice of appeal of that date, with all the proceedings connected therewith, fell to the ground, and the parties were remitted to the same condition they were in before the notice was given.

The defendants were thus left free to effect and perfect a new appeal, with an undertaking which stayed the execution of the judgment. This, it is not disputed, has been done. In Langley a. Warner (1 N. Y., 606), the defendant, Warner, had given notice of an appeal, but with a defective undertaking. An application was made for leave to amend the undertaking, which the Court of Appeals denied, saying that “ if the appellant really desires the judgment of this court, he can bring a new appeal.”

The judgment should be affirmed.

Present, Brown, Emott, and Lott, JJ.