Citation Numbers： 28 How. Pr. 436
Filed Date： 1/15/1865
Status： Precedential
Modified Date： 10/16/2022
In an action brought by executors for the construction of the will of the testator, where several heirs and devisees claiming under the will are made defendants, and a decree or judgment of the court is pronounced allowing the claims of some of the defendants as against the others, the latter defendants on bringing an appeal from the judgment in order tb effect their appeal, must not only serve their notice of appeal and other papers upon the plaintiffs, but also upon the defendants who have established their claims under the will, as these defendant» are the adverse party,” within the meaning of the Code (§ 327).'
Where such adverse defendants are not served with notice of appeal, &c., to effectuate the appeal as to them, but their attorney is served with copies of the caso and notice of argument, on bringing the appeal to a hearing, the attorney thus served, may on motion, have the cause stricken from the calendar as respects the defendants he appears for, with costs.
The court has no power to allow an appeal to be taken after the time limited in the Code for bringing an appeal. Nor has it any power to extend the time to appeal. And section 327 of the Code only allows an amendment, where notice of appeal shall have been given in good faith, &e.; it applies to acts other than the service of notice of appeal (Balcom, J., dissenting) •
January, 1865.
The case was tried at the Otsego special term, in July, 1861. The principal questions litigated were: 1st. Whether the defendant George L. Rathbun, under the second and third clauses of the will, on arriving at twenty-one years of age, took the accumulated rents of the Wheeler farm; and 2d. Whether the defendants Laura Carroll and Jane M. Rathbun, were entitled to the interest on the §2,000 bequeathed to each by the third clause, invested on interest by the plaintiffs. The defendants represented by Mr. Bates, claimed the rents and such interest went into the residuum. The court held that George L. Rathbun took the rents, and Laura Carroll and Jane M. Rathbun, were entitled to such interest. Judgment was perfected in Otsego county clerk’s office accordingly, February 5th, 1864. February 27 th, the four defendants who appeared by Mr. Bates, by a notice of appeal directed to the clerk and the attorney for the defendants only, appealed as against the plaintiffs. March 17th, the costs of the defendants were adjusted, and inserted in the entry of judgment. On the 13th of April, the three defendants who appeared by Countryman & Moak, served upon Mr.Bates, the attorney for the four other defendants, a copy of the judgment, with the signature of “ D. A. Avery, county clerk of Otsego county,” thereto, and a notice of such judgment, telling him it was done to limit the time for his clients to appeal, and that they understood the law to be that if his clients desired to affect the rights of theirs, as determined by the judgment, his clients must appeal as against theirs. He claimed he had examined the law and should not appeal as against them. No proposed case or
(a) The plaintiffs do not represent any of the defendants. All they desire is a construction. They are indifferent as to which class of the defendants succeeds (1 Story’s Eq. Pl. § 362).
(b) The Code (§ 27, sub. 1) provides that “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side as between themselves.” By section 327, “ an appeal must be made by the service of a notice in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered.”
II. The copy judgment and notice having been served on Mr. Bates, April 13, 1864, the defendants for whom he