Cotes v. Carroll

Mason, J. There can be no doubt, I think, that the appeal in this case as to the defendants Laura, Jane M. and George L., who appeared by Countryman & Moak, their attorneys, is wholly ineffectual. As to them there is no appeal, as no notice of appeal was served upon them or their attorneys. The language of the Code is that “ 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.” The 60th section of the statute regulating appeals from a decree of the vice-chancellor to the chancellor, declared that an appeal from a decree or order of the vice-chancellor should “ be made' by serving notice thereof on the solicitor of the adverse party, and on the register, assistant register or clerk with whom the order or decree appealed from was entered ” (2 R. S. 178). The only difference in these two statutes is that the one says that the appeal must be made by the service of a notice in writing on the adverse party, while the other says that it shall be made by serving notice on the solicitor of the adverse party. Now it was adjudged by the chancellor in the case of Thompson agt. Ellsworth and others (1 Barb. Ch. Rep. 624), that the adverse party within the intent and meaning of the statute, was the party whose interest in relation to the subject of the appeal is in conflict with the reversal of the order or decree appealed from or the modification sought by the appeal, and this it seems to me is the only sensible construction which can be put upon the statute, and it must control in the construction of the 327th section of the Code. It follows, therefore, that there is no appeal as against Laura Carroll, Jane M. and George L. Rathbun, in this.case. The only remaining question is whether we can allow, [447] by way of amendment or otherwise, this notice to be served after the time for appealing has gone by, so as to make this appeal effective as against these three defendants. I held some fourteen years ago, in the case of Crittenden agt. Adams and others (5 How. Pr. Rep. 310), that this court had power under the statute to allow an appeal to be taken after the time limited in the Code. The reasons there assigned were, and are now, satisfactory to me for so hold-, ing. The language of the statute is, “ the court may, in its discretion, allow an answer or reply to be made, or other act to be done after the time limited by this act.” I am not, however, justified in adhering to that decision, it has been so badly shaken and repudiated by subsequent decisions in this court (2 Code Rep. 71; 16 How. Rep. 385; 7 Id. 108; 26 Id. 247; 5 Id. 361; 27 Id. 133; 5 Id. 114; 24 Id. 20; 13 Id. 93; 24 Id. 193; 7 Id. 197), and especially since the decisions in the court of appeals in the cases of Humphrey agt. Chamberlain (1 Kern. Rep. 274), and Wait agt. Van Allen (22 N. Y. Rep. 319). These cases certainly hold that the time to appeal cannot be extended. There being no appeal against these three defendants, I do not see how these appellants can be helped out of their difficulty under section 327. That section provides that “ when a party shall give in good faith notice of appeal from a judgment or order, and shall omit through mistake to do any other act necessary to perfect the appeal or to stay proceedings, the court may allow an amendment on such terms as may be just.” This section has no application, for no notice of appeal has been given as regards these three defendants, and by this section the court can only allow an amendment where a notice of appeal" shall have been given in good faith, and the party shall, 'through mistake, have omitted to do some other act than giving the notice of appeal, which was necessary to perfect the appeal. It is very clear to my mind that this 327th section applies to acts other than the service of notice of appeal, and the [448] amendment can then only be allowed when notice of appeal has been' actually served on. the adverse party, against whom the appeal is desired to be perfected. (5 How. Rep. 114; 16 Id. 385; 26 Id. 247; 26 Id. 23.) There is another reason why this should not be allowed here. There is no mistake shown. The party did not intend to serve any notice of appeal on these three defendants. We must strike the cause from the calendar as to these three defendants, and refuse to hear the appeal as to any of the matters affecting their interests, with $10 costs. Parker, P. J., concurred.