APPENDIX. RULES OF COURTS. filed with the clerk of this court, within twenty days after the appeal shall be perfected. If he fail to do so, the respondent may, by notice in writing, require such return to be filed within ten days after service of the notice; and if the return be not filed in pursuance of such notice, the appellant shall be deemed to have waived the appeal; and on an affidavit proving that the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, 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. See note to sections 328, 339 of Code. b. An affidavit of the respondent is sufficient to prove when the appeal was perfected. Unless the respondent can show some delay or inconvenience in APPENDIX. RULES OF COURTS. COURT OF APPEALS. RULE I.-The return. When the appeal is from a judgment, the return of the clerk of the court below shall consist of certified copies of the notice of appeal, and the judgment-roll. When the appeal is from such an order as is mentioned in the eleventh section of the code of procedure, the return shall consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted in making the order. a. No general rule or order of the court of appeals, or of the supreme court shall be of any force or effect until it shall have been published in the newspapers at Albany in which legal notices are by law required to be published, once in each week for three successive weeks [Laws of 1847, cap. 470, p. 639, § 4]. RULE II.-Appellant to file return; effect of his omission. The appellant shall cause the proper return to be made and filed with the clerk of this court, within twenty days after the appeal shall be perfected. If he fail to do so, the respondent may, by notice in writing, require such return to be filed within ten days after service of the notice; and if the return be not filed in pursuance of such notice, the appellant shall be deemed to have waived the appeal; and on an affidavit proving that the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, 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. See note to sections 328, 339 of Code. b. An affidavit of the respondent is sufficient to prove when the appeal was perfected. Unless the respondent can show some delay or inconvenience in 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. act. 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. |