Gardner v. Brown ( 1850 )

Welles, Justice.

I have not been able to find any statute or standing rule of court or rule of practice, prescribing any particular time within which the surrogate is required to make his return to an appeal. By the 118th rule of the late Court of Chancery, the party appealing was required to cause the transcript of all the proceedings before the surrogate, &c„ to be made, authenticated and returned to the appellate court within twenty days from the time of entering the appeal in the court below, or the chancellor might dismiss the appeal, unless further time was allowed for the return of the transcript. The 82d of the present rules of this court, which regulates appeals from the deeisions of surrogates, does not contain the above provision1;: and? if it did; it would not determine the question within what time the return is to be made.

It is undoubtedly the duty of the surrogate to1 make his return; as soon as practicable, and if he neglects-unreasonably to do so; this court has the power, and- would exercise it,, to order him to-make the return on pain of attachment (Halsey vs. Van Amringe, 4 Paige, 279). The appellant is bound- by the above 82d rule", to" file his petition of a-ppeal within fifteen days after the appeal-is entered in the court below; or the appeal will be regarded.as-deserted by the appellant, and-will be dismissed- on motion; and-he can not compel the respondent to answer the petition until the return is filed (Halsey vs. Van Amringe, supra). The appellant is therefore tied up and his appeal is stayed in its progress until-the return is made.

It is suggested that the fees of the surrogate should have been paid for making the return'before this motion was noticed. The-affidavit shows an offer to pay the fees, and it dbes not appear that the omission to- make the return has ever been put on the ground of the non payment of the fees.- Besides,-! think, under' the circumstances of this case- an offer to pay was sufficient. It was all the appellants could dm They could not pay until they •knew the amount, and I think an offer to pay was equivalent to1 a strict tender of the money, at least, until the amount was ascertained' and the- appellants informed of it.

An ord'er should be entered directing the surrogate to make the-return within twenty days from the service of the order, or that the appellants be' at liberty to move thereafter, upon due notice1 to' the' surrogate;, for a» attachment against him.