Weill v. Levi

On Motion to Dismiss. The opinion of the Court was delivered by Todd, J. The motion rests upon two grounds : 1st. Want of jurisdiction; and 2d. Want of proper order of appeal. The plaintiffs seized and sold certain real estate of the defendant, [136] which realized $13,000. A third opposition was made claiming $1,000 out of that amount in preference to the plaintiffs. The contest relates exclusively to the distribution of a fund exceeding $2,000. The plaintiffs claim the entire fund, It has been decided in a similar case that this Court had jurisdiction. Renshaw vs. Stafford, 34 Ann. 1138. The third opponent, who is appellee, claims that the motion of appeal was not made and granted in open court; and for the purpose-of showing this, he obtained from this Court a qualified order authorizing the court of the first instance to receive evidence on the subject. The minutes of that court show that the motion was made and allowed in open court. The order for the reception of evidence by the lower court reserved the right of the appellant touching the admissibility of the evidence. An entry on the minutes may, in exceptional cases, be attached and declared null, but this could only be done for causes and reasons which have not been alleged in the instant case. Under the showing made, the proof adduced by the appellee is inadmissible and cannot be considered. The minutes as they stand conclude him. 4 N. S. 176; 14 Ann. 726; 34 Ann. 1117. The motion is therefore denied.