Van Heusen & Charles v. Kirkpatrick

Harris, Justice.

A justice is allowed a fee. of one dollar for making his return to an appeal. If this fee is not paid on the service of the notice of appeal, the justice is not bound to make a return, nor is it in the power of the appellate court to compel such return. The appeal can not be brought to a hearing until the return is made. What, then is to be done in such a case? How is the party against whom an appeal is taken, to put the appellant in motion? It can not be, that such an effect is to be given to the provisions of the Code as to allow a party to perfect his appeal by the service of the proper papers, and then by omitting to pay the requisite fee, to prevent a return being made, and thus obtain a perpetual stay of proceedings; and yet this would be the necessary result of the construction contended for by the appellant’s counsel.

It is true, that the due service of the notice of appeal is sufficient to give the appellate court jurisdiction of the case. But it does not follow from this, that the appeal is thereby perfected, or that it can not be dismissed after such notice. On the contrary, the very section of the Code, upon which the appellant’s counsel relies, provides that when “ any other act necessary to perfect the appeal” shall have been omitted through mistake, the court may still allow it to be done. Upon an appeal from a justice’s court, the payment of the fee requisite to obtain a return, is undoubtedly such an act. The return is necessary to perfect the appeal; until it is made no review can be had—no final determination of the action can be made. If in this case, as there is some reason to believe, the payment of the fee was intentionally omitted at the time of the service of the notice of appeal, then it would not be a case for relief, even upon terms, under the provisions of the ?27th section - of the Code. But if the payment was omitted through mistake, then he ought still to be permitted to perfect his appeal, if, by any means, he can obtain a return. The justices are under no obligation to make such return, nor has the court the power to require it. But if they can be induced, voluntarily, to make it, the appellant may yet perfect his appeal.

The appellant’s counsel seems to have supposed that because the provisions of the former statute relative to appeals (2 R. S. 259, § 191,) which declared that no appeal should be valid, or have any effect, unless, among other things, the justice’s fee should he paid within a prescribed time, are omitted in the Code, the payment of such fee could not he regarded as necessary to perfect the appeal; but this view is clearly erroneous. Under the former statute, the fee must be paid within thirty days, or the appeal became ineffectual. This peremptory requirement is omitted in the Code, and yet the payment of the fee is equally-necessary as before. Now the appeal may be made effectual, if the return can be procured, although the fee was not paid at the time prescribed by the Code. Under the former statute, there was in fact no appeal, unless within the time prescribed for that purpose the fee was paid. This I understand to be the only difference between the two statutes. The appeal must be dismissed with costs, unless within ten days the appellant shall procure and file in the proper office a return, and pay the costs of this motion.