Studwell v. Palmer

5 Paige Ch. 57, 1835 N.Y. LEXIS 200, 1835 N.Y. Misc. LEXIS 45

• Court: New York Court of Chancery
• Decided: January 20, 1835
• Status: Published

Opinion

The Chancellor.

The- appeal was entered within the lime limited by the statute. The parties against whom the order was made had fifteen days to appeal, after the receipt of notice of the order appealed from. And as the order was never served upon the defendants, or their solicitor, they are not chargeable with notice thereof until the 8th of November, when their solicitor first saw the order. This point was expressly decided in the recent case of Eldridge v. Howell, (4 Paige’s Rep. 457.) If the party in whose favor an interlocutory decision is made, wishes to limit the time for appealing therefrom, he should draw up and enter the order, and serve a copy thereof upon the solicitor of the adverse party without delay.

It is not a valid objection to the regularity of the appeal? that one of the sureties in the appeal bond is the solicitor: for the appellants. In the common law courts, where formal exceptions are taken to the sufficiency of bail, it is a good ground of exception that one of the proposed bail is an attorney or counsellor of the court. But the case of Scott v. Craig, (I Wend. Rep. 35,) cited by the respondent’s counsel from the decisions of the supreme court, shows that even in- that court it is not a ground for quashing a writ of error, that one of the bail in error is an attorney. The rule in the common law courts is merely technical; and neither the statute or the rules of this court contain any prohibition against a solicitor’s becoming a surety in an appeal bond. It would, therefore, be manifestly unjust to apply such a technical rule to this case? for the purpose of depriving the defendants of the benefit of their appeal.

The motion to dismiss the appeal must be denied, with costs.