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not making the return in pursuance of this rule, or not serving the copies of the case as required by Rule VII., the defaults taken under those rules should be relieved against upon terms, in all cases where it appears that the appeal is brought in good faith (Waterman v. Whitney, 7 How. 407). Where the respondent has omitted to avail himself of the neglect of the appellant in procuring the return of the clerk within twenty days after the appeal was perfected, until after the return has been made, and has after the filing of the return noticed the cause for argument, the objection that the return was not made in time is waived. An objection that the return does not contain a copy of the notice of appeal, and also that the printed copies of the case served do not contain a copy of the notice of appeal or a copy of the certificate of the clerk of the court below, that the papers returned by him are correct copies of the judgment-roll, &c., are omissions which the court will, on motion, allow the appellant to supply without dismissing the appeal (Beecher v. Conradt, 11 How. 181).
a. Where the appellant is required under this rule to cause the proper return to be filed, he must see to it at his peril that the return is actually filed in due time, or procure an extension of the time. An appeal regularly dismissed for want of a return will not be reinstated without the appellant establishes a clear case of diligence on his part, and shows that the inexcusable default of the clerk or an unavoidable accident has prevented the filing of the return or the extension of the time to file it (Spoor v. Fannan, 16 N. Y. 620).
b. Jurisdiction of court below after return made to the court of appeals (see 17 How. 289).
c. Application to amend the return must be made to the court below, semble (see Suyston v. Sniffen, 1 Barb. 428).
d. Appeal dismissed for defect in return (Ferguson v. Ferguson, 7 How. 217).
e. Argument of appeal suspended to have' case resettled according to the facts (Livingston v. Miller, 7 How. 219).
f. An affidavit to ground a motion to dismiss an appeal because the suit in the supreme court is a continuation of one commenced before a justice, must show the fact in terms, that the justice was ousted of jurisdiction by giving the undertaking required by section 56 of the code (Lalliette v. Van Keuren, 7 How. 409).
g. The court has jurisdiction to dismiss an appeal, although no return has been filed (Adams v. Fox, 27 N. Y. 640).
RULE III. Further return may be ordered.
If the return made by the clerk of the court below shall be defective, either party may, on an affidavit specifying the defect, apply to one of the judges of this court for an order that the clerk make a further return without delay.
See note to section 328 of Code.
RULE IV.-Attorneys and guardians below to continue to
The attorneys and guardians, ad litem, of the respective parties in the court below shall be deemed the attorneys and guardians of the same parties respectively in this court, until others shall be retained or appointed, and notice thereof shall be served to the adverse party.
a. Attorney on appeal.—An appeal may be prosecuted by a new attorney without an order for substitution (Pratt v. Allen, 19 How. 456; McLaren v. Charrier, 5 Paige, 530).
RULE V.-Appellant to make a case; its form.
In all calendar causes a case shall be made by the appellant, which shall consist of a copy of the return of the clerk, and the reasons of the court below for its judgment, or an affidavit that the same cannot be procured. If the case is voluminous, an index to the pleadings, exhibits, depositions, and other principal matters, shall be added.
Every opinion in the cause, at special term as well as at general term, relating to the questions involved in the appeal, is included by the foregoing provision.
RULE VI.-Cases and points to be printed; mode of printing.
All cases and points, and all other papers furnished to the court in calendar causes, shall be printed on white writing paper, with a margin on the outer edge of the leaf not less that one and a half inch wide. The printed page, exclusive of any marginal note or reference, shall be seven inches long and three and a half inches wide. The folio, numbering from the commencement to the end of the case, shall be printed on the outer margin of the page. Small pica, solid, is the smallest letter and most compact mode of composition which is allowed. No charge for printing the papers mentioned in this rule shall be allowed as a disbursement in a cause, unless the requirements of the preceding sentence shall be shown by affidavit to have been complied with, in all papers printed after August 1, 1857.
This rule is printed in small pica, solid.
RULE VII.-Appellant to serve copies of case; effect of his default.
Within forty days after the appeal is perfected, the appellant shall serve three printed copies of the case on the attorney of the adverse party. If he fail to do so, the respondent may, by notice in writing, require the service of such copies with ten days after the service of the notice, and if the copies be not served in pursuance of such notice, the appellant shall be deemed to have waived the appeal; and on an affidavit proving the default, and the service of such notice, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal.
b. After a remittitur has been regularly filed and an order entered to carry into effect the judgment of the appellate court, the order will not be vacated
by the court below, and the remittitur taken from the files, without some suggestion from the appellate court itself, that the remittitur does not conform to its judgment, or has been irregularly issued (Selden v. Vermilyea, 3 Sand. 683; 6 How. 41; Bogardas v. Rosendale Manufacturing Co. 1 Duer, 502).
a. Where an appeal to the court of appeals is dismissed for want of prosecution and remitted to the court below (the superior court), to be there proceeded with, the proper course appears to be that the judgment of the court of appeals be directed to be made the judgment of the court below, and that the costs of the appeal be adjusted by the clerk, and by him entered in the judgment (Union India Rubber Co. v. Babcock, 1 Abb. 267; 4 Duer, 620). See Form of judgment (id.)
b. Where the case served is imperfect, the remedy is by motion on notice, to have it corrected. The respondent cannot enter an order dismissing the appeal, except where no case is served (Bowers v. Tallmadge, 20 How. 516; 23 N. Y. 166).
See note to Rule II., and see in note to § 333, ante.
RULE VIII.-Repealed. See Rule XXIX.
RULE IX.-Copies of cases for judges, and copies of points for the court and adverse party.
At the commencement of the argument the appellant shall furnish a printed copy of the case to each of the judges, and shall deliver eight other copies to the clerk. Each party shall, at the same time, furnish to each of the judges a printed copy of the points on which he intends to rely, with a reference to the authority which he intends to cite; and shall deliver eight other copies to the clerk, and three copies to the counsel of the adverse party.
In all appeals of this court, heard as motions under subdivis ion four (4) of section eleven (11) of the code of procedure, as amended in 1867, the appellant shall furnish the court with the number of printed copies required by this rule, in calendar causes, of all papers used in the court below upon which the order appealed from was founded; and each party is also required to furnish the court with printed points, as in calendar causes.
The cases, points, and calendars delivered to the clerk shall be disposed of as follows: one copy of each shall be kept by the clerk with the records of the court, one copy shall be deposited in the State library, one copy shall be deposited in each branch of the library of the court of appeals, one copy shall be deposited in the library of the New York Law Institute, and one copy shall be delivered to the reporter.
c. The heads of an argument, together with the authorities cited, but not the argument at length, are embraced under the term "points” (Gray v. Schenck, 3 How. 231). Will the court take notice of any matter not raised by the points submitted? (Dolloway v. Turrill, 26 Wend. 398 and 403; see Pratt v. Strong, 3 Keyes, 54).
d. In motions under subd. 4, of § 11 of the code, motion costs ($10), only are allowed (Borst v. Levy, Co't of Appeals).
e. Appeals arising under subd. 4 of § 11 of the code, will be placed on the calendar in the fourth preferred class. The court will not hear such
cases unless they are upon the calendar, and notice of intention to bring them on as motions is given in the notice of argument.
RULE X.-Statement of facts on the points. Discussion on questions of fact.
In all cases each party shall briefly state upon his printed points the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found. And the court will not hear an extended discussion upon any mere question of fact.
RULE XI.-Judgment of affirmance or reversal by default. The party who has noticed and placed the cause on the calendar for argument, may take judgment of affirmance or reversal, as the case may be, if the other party shall neglect to appear and argue the cause, or shall neglect to furnish and deliver cases of points, as required by the ninth and tenth rules. (See Rule XXV.)
RULE XII.-Only one counsel to be heard on each side, unless by order.
In the argument of calendar causes and motions, only one counsel will be heard on each side, unless the court shall otherwise direct.
RULE XIII-Criminal cases preferred on calendar.
Criminal cases shall have a preference, and may be moved, on behalf of the people, out of their order on the calendar.
a. Laws 1858, ch. 37, direct that a preference be given to civil actions or proceedings in which the people of this State are a party (see Barron v. The People, 1 Barb. 136).
b. Actions in which executors or administrators are sole plaintiffs or sole defendants, and appeals which prevent the issuing of letters testamentary or of general administration, have a preference over all actions except criminal cases, and may be moved out of their order on the calendar (Laws 1860, ch. 167).
C. "Actions in which executors or administrators are sole plaintiffs or sole defendants, and in which the appeal prevents the issuing of letters testamentary or of general administration, shall have preference in the court of appeals and in the supreme court, at the general term thereof, over all actions, except in criminal cases in which the people are a party, and may on notice be moved out of their order on the calendar (Laws 1865, ch. 218, § 1). Construction of this law, see 32 N. Y. 604.
d. Appeals in actions on evidence of debt against a corporation have a preference (Brainerd v. N. Y. & Harlem R. R. Co. 23 How. 491; see R. S. tit. 4, ch. 8, § 9, pt. 3).
RULE XIV.-Submitting case on printed arguments.
Causes which have not been exchanged, may be submitted at any time in term on printed arguments. Exchanged causes cannot be submitted until reached upon the calendar.
Motions will be heard on the morning of the first day, and on the morning of each following Tuesday and Friday during the term, before taking up the calendar.
Where notice has been given of a motion, if no one shall appear to oppose, it will be granted as of course.
If a motion be not made on the day for which it has been noticed, the opposing party will be entitled, on applying to the court at the close of the motions for that day, to a rule denying the motion, with costs.
a. A motion to interfere with the calendar will not be granted of course (Crane v. Rowley, 4 How. 79).
The remittitur shall contain a copy of the judgment of this court, and the return made by the clerk below, and shall be sealed with the seal, and signed by the clerk of this court.
RULE XVII.-On affirmance or reversal by default, remittitur to be stayed.
When a decree or order shall be affirmed or reversed by the default of either party, the remittitur shall not be sent to the court below, unless this court shall otherwise direct, until ten days after notice of the affirmance or reversal shall have been served on the attorney of the party in default. Service of the notice shall be proved to the clerk by affidavit, or by the written admission of the attorney on whom it was served.
b. Usual terms of opening default (Conant v. Vedder, 4 How. 141).
c. The 17th rule of the court of appeals was intended to protect the party against surprise, and to give him ample time to make his application for relief, or to obtain an order staying proceedings, to enable him to do so; and if a party rejects the opportunity to avail himself of the benefit of the time thus given, and permits the remittitur to be sent to the court below, the appellate court has lost all power over the cause (Latson v. Wallace, 9 How. 334). Thus where a default was taken 8th April, notice thereof served 10th April, and the remittitur filed 12th May,-held that a motion made afterwards to open the default was too late (ib.)
RULE XVIII.—Enlarging time. Revoking orders.
The time prescribed by these rules for doing any act may be enlarged by the court, or by either of the judges thereof; and either of the judges may make orders to stay proceedings, which, when served with papers and notice of motion, shall stay the proceedings according to the terms of the order. Any order may be revoked or modified by the judge who made it, or, in case of his absence or inability to act, by either of the other judges.