Harper v. Allyn , 3 Abb. Pr. 186 ( 1867 )

By the Court.^*—James C. Smith, J.

The is an appeal from an order of the Monroe county court, granting a new trial in that court, on the minutes of the county judge. It is moved by the appellant, for hearing, as a non-enumerated motion, the papers not having been printed, and the cause not having been placed on the calendar. The respondent’s counsel objects that it is an enumerated motion, and that it cannot regularly be brought on for hearing, except in the mode prescribed by rules 42 and 43 of this court.

We are of opinion the objection is well taken. The motion is of the class termed enumerated. The Code provides that the argument of an appeal of this description, must be had upon a case or exceptions (Code, § 264, sub. 4; § 366, sub. 6), and by the provisions of rule 40, motions on cases or exceptions are enumerated. Rule 42 applies expressly to enumerated motions, and requires a copy of the papers on which the motion is founded, to be furnished at least eight days before the term, and provides that if it is not done the opposite party may move to strike the cause from the calendar. Rule 43, which requires the papers to be printed, applies to appeals to the general term in cases embraced in chapter 3 of title, 11 of the Code, and the present appeal is given by § 344 which is a part of that chapter.

This view of the question is not affected by the provision of section 344, that the “ appeal shall be heard on a copy of the papers on which the order appealed from was made.” That provision is not inconsistent with the rules referred to, which prescribe and the mode in which the papers shall be prepared furnished.

Our attention has been called to the case of Willis v Trainner, (MS. case, heard in 1864), in which we overruled the objection now under consideration, and heard a similar appeal upon a manuscript case, as a non-enumerated motion. The objection appears to have been disposed of when it was raised without deliberate examination, and we are satisfied the decision should not be followed. But as the appellant’s counsel evidently relied upon it, in his practice in the present case, we direct that the motion stand over till the next term, to give him an opportunity to bring on the case as an enumerated motion, and we do not give costs on this motion to either party.

* Present—J. C. Smith, P. J., and Welles and E. Darwin Smith, J. J.