Halsey v. Van Amringe , 1833 N.Y. LEXIS 193 ( 1833 )

The Chancellor.

By the 118th rule, if the appellant neglects to file his petition of appeal addressed to this court, with the register or assistant register, within fifteen days after he has entered the appeal with the surrogate, by filing the appeal and giving a bond as required by the statute, (2 R. S. 611, § 117,) the appeal is to be considered as waived. This, however, is not such a waiver as to deprive this court of all jurisdiction over the case, and to authorize the surrogate to proceed as if no appeal had ever been entered. But it is such a waiver as to enable this court to declare the appeal deserted, and to direct the surrogate to proceed notwithstanding the appeal which has been entered in his office. By the practice of the ecclesiastical courts, though an appeal apud acta was entered, and apostles were granted by the judge a quo, it did not prevent the court below from proceeding to execute the sentence, after the expiration of the time limited by that court for the appellant to retro-certify what steps had been taken by him on the appeal. But the appellant, if he wished to stay the proceedings "upon the sentence appealed from, was obliged to 'obtain an inhibition from the appellate court. (Law's Ecclesiastical Pr. 312.) That inhibition, however, when served, stayed all proceedings in the court below, even after the expiration of the primara fatale, or first year, within which the appellant was required to prosecute his appeal to effect; unless the appellate court declared the appeal deserted, or authorized the judge a quo to proceed and execute his sentence* (Conset’s Eccl. Pr. 194, pt. 5, § 2, sub. 6. Cockburn, 182.) Here, by the statute, the filing of an appeal with the surrogate, and giving the bond required by law, suspends all proceedings in the court below until the appellate court shall authorize proceedings therein. And if such appeal is deserted, by the neglect of the appellant to file his petition of appeal in this court within the time prescribed by the rule, or if any person who would have been entitled to proceed on the sentence or order appealed from if such appeal had not been entered, is not made a party to such petition of appeal, by the usual prayer that he may answer the same, the party whose proceedings are stayed must apply to this court for leave to proceed before the surrogate notwithstanding the appeal.

By the practice of the ecclesiastical courts in England, upon an appeal in a testamentary cause, the appellant was not required to wait until he had obtained the transmiss from the judge a quo before he filed his libel of appeal; but the transmiss of the proceedings in the court below must be exhibted before the conclusion of the cause; that is, before the cause could be in readiness for a final hearing on the appeal. (Cockburn, 193, § 9.) If the judge or his register neglected to transmit the proceedings, the appellant might compel a return thereof by monition, or if the transmiss was imperfect he might, upon a proper application to the appellate court, obtain a monition for a further return of such parts of the proceedings as were omitted or imperfect in the original transmiss. (Cockburn, 191, § 2, 193, § 13.) Here, the petition of appeal, which corresponds with the libel of appeal in the ecclesiastical court, and which is also founded upon the proceedings and the appeal in the court below and not upon the transcript, may likewise be filed before the transcript is obtained. Though perhaps, in strictness, the transcript should be filed in this court before the respondent will be compelled to answer the petition of appeal. The mode of compelling the surrogate to furnish the transcript, or to correct any omissions or imperfections therein, must be by order, and by attachment for disobedience thereto, in . conformity to the practice of the court of chancery in other similar cases. The fact that the transcript could not be obtained, in this .ease, within fifteen days after the appeal was entered, is not therefore, of itself, a sufficient answer to this application. But as the appellant’s solicitor has acted in good faith, and under a mistake as to the practice of the court, he must be permitted to proceed on the petition of appeal which is now filed. The appellant, however^ must pay the costs of this application.