Muir v. Demaree

9 Wend. 449

• Court: New York Supreme Court
• Decided: November 15, 1832
• Status: Published

Opinion

By the Court,

Nelson, J.

By the second rule established by this court at the last May term, regulating proceedings in cases of this kind, the decision of the circuit judge is required to be filed in one of the clerk’s offices of this court, and the party in whose favor the decision is made is authorized to en« ter such rule to give effect to the decision, as in like cases is entered upon a decision of this court: such rule, however, not to be entered in vacation. The rule to be entered, therefore, in such cases, is a rule granting or denying a new trial, and it must be entered in term time; and within eight days thereafter, that is, after the entry of such rule the party intending to appeal must execute the bond required by the statute, or obtain an order staying the proceedings. Such is the purport of the fourth rule of May term last. The plaintiff’s attorney understood the limitation of eight days to run from the filing of the decision, instead of the entry of the rule, and supposing the appeal out of season, entered judgment. In this he erred. The appeal was in season, and the judgment must be set aside.