Sholts v. Judges of Yates

2 Cow. 506

• Court: New York Supreme Court
• Decided: February 15, 1824
• Status: Published

Opinion

Curia.

It was necessary that a bond shoul d be given and the costs paid within four days after the judgment, in order to make an appeal operative; but these facts need not appear from the Justice’s return. It lay with the opposite par ty to show affirmatively, that the bond and payment of the costs were out of time, if he wished’to avail himself of the irregularity. Until the contrary was shown, the Court below were right in intending that the proper measures were taken before the Justice, on instituting the appeal. Nor should the appellant be prejudiced by the omission of the Justice to endorse his approbation upon the bond, or file it within the time required by law. Besides, his satisfaction with the security given should, as to the appellant, be inferred from the act of filing it with his return. The party ought not to suffer from such a trifling informality. The Common Pleas were regularly possessed of the cause.

Then had the Common Pleas jurisdiction of this execution? We think it is to be considered as the process of that Court. On a transcript being filed, and an execution issued, all control over it ceases on the part óf the magistrate who renders the judgment. The execution issues from the Clerk’s office of the Common Pleas, like their other process, and all control over it, properly belongs to that Court. It follows that they had power, in this instance, to set aside the execution for irregularity; and we are clear that the power was properly exercised. The- appeal was a supersedeas, and the appellee having afterwards proceeded upon the execution, the opposite party had a right to call upon the Court to restrain him by a rule.

Motion denied.