Parish v. Hedges

34 App. D.C. 20, 1909 U.S. App. LEXIS 5992

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 15, 1909
• Docket: No. 2050
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

Appellee, Henry C. Hedges, has moved to dismiss this appeal because of the failure to issue and serve a citation upon the allowance of the same. It is a special appeal from an interlocutory order entered in a probate proceeding, that was allowed by order of this court in the exercise of the discretion committed to it by law in such cases. It has been argued by appellant, Emily E. Parish, that the rule requiring citation in case of appeals applies only to final judgments and decrees, and not to appeals from interlocutory orders in a pending cause, because tbe parties are in court, and bound to take notice of all proceedings until tbe final termination of tbe suit. Certainly, the reason for requiring notice in tbe latter class of appeals is not so strong as in the first, but we deem it unnecessary to determine tbe question raised. Assuming tbe rule applies equally to both,, tbe motion, we think, is not well taken.

The object of tbe citation on appeal is to give notice to tbe appellee that an appeal has been taken. This notice be received when be accepted the service of the designation of tbe parts of the record to be included in tbe transcript. This acceptance of notice was bad without condition or objection, and therefore amounted to a waiver of tbe regular citation. Dowling v. Buckey, 26 App. D. C. 266; Leonard v. Rodda, 5 App. D. C. 256, 262.

The motion is denied.