O'Hare v. Leonard

Weight, J. i prac™ín¿ of1' recor ‘ Appellee insists that there was no error in reinstating the case, for the reason that the judgment of dismissal was not operative, inasmuch as the records of the November Term were not signed by the judge. By section 2665 of the Revision, however, it is provided that the delay to sign the records shall not prevent an execution from issuing, and that all other proceedings may take place as though the record had been approved and signed. Plaintiff was, therefore, as fully entitled to his procedendo, to carry out the order of dismissal, as though the record had been signed. There is no suggestion that the court found the order of November, 1864, improper or incorrect, but it is manifest that the case was reinstated because of a difference of opinion (there was a change of judges in the meantime) as to the necessity of a stamp on the appeal process. 2/stamps*. case jon°w [517] 3_aot construed. [516] The question then is, whether this process could be post stamped, or stamped after the appeal was once dismissed, so as to give appellant a standing in court. This pTeojse question (even more favorable for appellee than in this case, for there was no question as to the right of the court to take ’ cognizance of a cause at a term after it was dismissed) was before us at the present term, in the case' of Hugus v. Stickler, ante, 413, and it was there [517] held that the process could not be thus stamped. Following that case, it results that the court below erred in reinstating the case, and that the appeal was properly dismissed. It is proper to state that section 163 of the stamp act of June 30, 1864, relates to instruments made iejore that time, and that the power there given to the courts, &c., does not extend to instruments thereafter made. Eeversed.