Dresser v. Brooks

Bronson, Ch. J.

As the notice of justifying was served by mail, it should have been double time or ten days. If the appellant had not sufficient time to give regular notice by mail, he should either have caused personal service to he made, or should have obtained a judge’s order enlarging the time. As the notice was irregular, the justification amounts to nothing. But there is ground for granting relief, and the appeal will not be dismissed if the sureties justify within thirty days, and the appellant pays the costs of the motion.

If the sureties justify, all further proceedings on the appeal should be stayed until the costs of the former appeal are paid. Two successive appeals in the same case, like two actions for the same cause, tend to vexation; and we think this branch of the motion should be granted.

Ordered that the appeal he dismissed with costs, unless the sureties in the undertaking justify, upon regular notice, within thirty days, and the appellant pays ten dollars costs of the motion. If the sureties justify, then all further proceedings on the appeal are stayed until the costs of the former appeal are paid; and if they are not paid within sixty days from this time, the respondent may enter an order dismissing the present appeal, for want of prosecution, with costs.