Brayton v. Bacon ( 1890 )

This was a motion to dismiss an appeal on the ground that the notice of appeal had not been given within the ten days prescribed by law. It appeared that the Circuit decree was filed on August 14, 1890, during the vacation of the court, and that notice of the filing thereof was served on August 30, 1890, addressed to “W. S. Monteith and Bachman & Youmans, plaintiff’s attorneys,” and accepted by “Bachman & Youmans, of counsel for plaintiff.” Notice of appeal, signed by “W. S. Monteith, plaintiff’s attorney,” was served on September 24, 1890, and was returned the same day to Mr. Monteith by defendant’s attorney, with the statement that the appeal had been waived by a failure to give notice of appeal within ten days after August 30.

It appeared from the affidavits submitted by defendant that Col. Youmans, of the firm of Bachman & Youmans, came into the case at the first reference, and from that time forward bore the principal part for the plaintiff, examined the witnesses, made a motion to have the complaint amended, argued on the facts before the master, prepared the exceptions to the master’s report (which were signed “Monteith, Bachman & Youmans, plaintiff’s attorneys”), and argued the cause before the Circuit Judge. Also, that the name of Bachman & Youmans had been added to that of Mr. Monteith in the column of plaintiff’s attorneys at a previous term of the Circuit Court by the judge then presiding.

Plaintiff’s affidavits showed that Col. Youmans was not employed as principal attorney, but simply to assist Mr. Monteith, the attorney of r^ord, in the conduct of the cause and in the argument, and that when the copy notice of the filing was handed to Col. Youmans, he told the messenger that Bachman & You-mans were not the proper parties to serve, and that he must serve Mr. Monteith.

The order of the court was delivered per curiam December 2, 1890, as follows :

It appearing that Mr. Youmans was employed as an attorney for the plaintiff, appellant, and that notice of the filing of the decree of the Circuit Judge was served upon him, and there being no appeal within ten daj’S thereafter, the appeal must be considered as abandoned, as is expressly provided by statute, and the motion must be granted.

M. W. Shand, for the motion. L. F. Youmans, contra.