Beecher v. Conradt

Dean, J.

By the court

As the respondent has omitted to avail himself of the neglect of the appellant’s attorneys in procuring the return of the clerk within twenty days after the appeal was perfected, until after the return has been made; and especially as he has himself, since the return was made, noticed the appeal for argument, he must be held to have waived all objection on that account.

The second and third grounds of motion are for omissions in the return and copies of the printed case-, which this court would, on motion, allow the appellant to supply, and the respondent having waited two years before moving to dismiss on account of such omissions, the appellant must now have leave to perfect the return, and copies of the case already served, and without costs.

The reason for the motion, fourthly named, that the judgment appealed from has never been passed upon by the general *183term, is of. a nature, as it goes to the jurisdiction of this court, which can not be waived by any lapse of time.

This is an appellate court only, and has jurisdiction to review upon appeal, every actual determination made at a general term, by the supreme court, in a judgment in an action commenced therein. (§ 11 of Code.) This is such an action. It remains only to ascertain whether there has been an actual determination of the case made at the general term. The judgment-roll is full and explicit on this point. It says, that the motion for a new trial was made and argued at a general term of the supreme court, and that said court “ ordered, adjudged,” &c. This certainly must be held to be a judgment on an actual determination made at a general term. It is true, that the language used might imply that the decision of the supreme court was on an original motion, and not on appeal. But the appellant did not enter up the judgment, and cannot, on a motion to dismiss the appeal, be concluded by its language, unless it is so clear against him as to show that the court below had no jurisdiction in the premises. I think we are bound to presume, although it does not- affirmatively appear by the record, that the case was regularly at the general term by appeal, and that we cannot go behind the record, which shows an actual determination at general term, to inquire-whether there was a judgment at special term from which an appeal had been taken. The motion to effect that object should have been made in the court below, before the final judgment on the merits at general term.

The fifth ground of motion is intended to reach the question lastly discussed, viz., the want of precise and technical language in the entry of the judgment of the general term. If there was a bill of exceptions and an appeal to the general term, then the general term, on such appeal, could grant or refuse a new trial on such bill of exceptions, and from such determination an appeal to this court could be taken.

We are to presume that there was a regular appeal to the general term. At any rate the respondent cannot, on this mo*184tion, have the appeal dismissed for any reason stated in his notice of motion. F]

The motion must, therefore, be denied. But, as the return and printed copies of the case must be amended, leave is granted to the appellant to make such amendments, without costs to either party on this motion.