Pasteur v. Lewis

On Motion to Dismiss. The opinion of the Court was delivered by Todd, J. The ground of this motion is that the appeal was made returnable to this Cdirt on the first Monday in June, 1886, a day when the Court was not in session in this city. Tt is charged that the return [6] day was suggested by the appellants’ counsel, and therefore that the illegal return day was imputable to the fault of appellants. The order for the appeal was rendered on the petition of appellants; and from the copy of the petition in the transcript it would appear that the suggestion of the return day was made by the appellants’ counsel, since that day is mentioned and written in the body of the petition. It is, however, denied by the counsel of appellants that such was the fact. They state that the petition for the appeal was prepared and signed by them, but that blanks were left therein for the return day and the amount of the appeal bond, and the return day was fixed by the judge a quo on his own motion, — and this is sworn to. They have further caused the original petition and order of appeal to be brought up to this Court, which fully verify their statement and affidavit. They admit that after the order for the appeal was signed they filled up the blanks in their petition to correspond with the order of the court. Under these circumstances we do not think that the irregularity charged can be imputed to the fault of the appellants. It was the act of the judge. The motion to dismiss is therefore denied.