Guild v. Parson , 16 How. Pr. 382 ( 1857 )

By the court—Bosworth, Chief Justice.

The ground on which the dismissal of the appeal is moved, is this: The order allowing the amended supplemental complaint to be filed, has been reversed, and consequently, as it is now claimed, that complaint and all proceedings had thereon are out of the cause. Upon this view, which we regard as the correct view of the matter, there was no reason why the appeal should have been noticed for argument, after the order of the 22d of December, 1856, had been reversed. Such a notice was not essential in order to move to dismiss the appeal.

A dismissal of the appeal was not necessary for the defendant’s protection. The appeal fell, when the supplemental complaint, the demurrer thereto, and the order deciding such demurrer, (which latter order is the one appealed from,) ceased to be proceedings in the action. They ceased to be proceedings in the action upon the reversal of the order of the 22d of December, 1856. In the notice of the motion to dismiss, it is stated that costs of the motion will be asked. The motion being unnecessary, and the appeal having been brought practically to an end, by proceedings taken by the appellants, and which have resulted in reversing the order allowing an amended supplemental complaint to be filed, they are clearly not entitled to the costs of this motion. Ho objection is made to the entry of an order dismissing the appeal. The. order to be entered will, therefore, dismiss the appeal without costs.