Hawley v. Donnelly , 8 Paige Ch. 415 ( 1840 )

The Chancellor.

As the complainant asks for a dismissal of the appeal, upon an objection to the vice chancellor’s approval of the appeal bond merely technical, and which is where the appellants would be permitted to amend as a matter of course, upon the usual terms, if the party making this application has himself made a similar slip in the entitling of his papers, his motion must be denied with costs. It becomes necessary, therefore, to inquire whether it is strictly regular to entitle papers, in a proceeding upon appeal from a vice chancellor, in the manner in which the complainant’s affidavit and notice are entitled in this case.

Where there is an appeal to the court of chancery from a decision of a surrogate, or of a circuit judge when not acting as a vice chancellor or officer of this court, the case is brought before the chancellor upon a petition of appeal. And all proceedings subsequent to the filing of such petition of appeal, if not before, must be entitled in the appeal cause. (Gardner v. Gardner, 5 Paige’s Rep. 170.) But upon an appeal to the chancellor from a decree or order of a vice chancellor, as all the proceedings are still in the same court, no petition of appeal or transcript of the proceedings is required; and the title of the suit is not changed in any proceedings upon the appeal. (Rule 119. 5 Paige, 171.) This is strictly in accordance with the practice of the court of chancery in England, in the similar case of an appeal from a decision of the vice chancellor, or master of the rolls, to the lord chancellor. And the 95th rule of this court requires that in the entitling of papers, as well as in the endorsement thereof, by either party, the complainant’s name shall be placed first. That has not been done in this case, and the respondents’ application is therefore irregular.

In an ordinary case of a meritorious application, the court would disregard the misentitling of a paper which could not mislead the opposite party ; except in those cases where the mistake in the title of a sworn paper would exempt the deponent from the punishment of perjury, although his oath was false. In this case, however, for the reason stated in the first part of this opinion, the complainant’s motion must be denied with costs.