Katzin v. Jenny

The opinion of the court was delivered by Pitney, J. .The briefs deal with this case as if it were an appeal from a District Court taken pursuant to Pamph. L. 1902, p. 565. There is a “state of the case,” from which it may be gathered that in some court an action has been brought, a trial by jury had and a verdict rendered. What court entertained the action, and what judgment was rendered therein, are not made to appear. The statute referred to declares, in substance, that if either party in any action or proceeding in any District Court established in any city of this state shall be dissatisfied with the determination or direction of such District Court in matters of law, such party may appeal to the Supreme Court upon terms prescribed in the act. Section 2 of the act declares that “such appeal shall be in the form of a case agreed upon by both parties or their attorneys,” &c. It is implied, although not expressed in the act, that an appeal shall not be taken until after final judgment be rendered in the District Court, and that the record of that judgment shall be transmitted to [132] the Supreme Court, together with the state of the ease. The function of the state of the case is to set forth how the dis-pitted legal questions arose and how they were disposed of in the court below. O'Donnell v. Weiler, 43 Vroom 142, 145. It is analogous to the common law bill of exceptions. But such state of the case does not take the ¡Race of the record of the 'judgment that is under review. Such record should be transmitted, just as the judgment record is returned pursuant to writ of error where that form of review obtains, to the end that the court of review may impress its own judgment upon the record, by way of affirmance, reversal or modification. In Essler v. Camden and Suburban Railway Co., 42 Id. 180, 182, this court called attention to the fact that in an appeal taken from a District Court under the act of 1902 the failure to bring Into this court the record of the judgment below warranted a dismissal of the appeal. In Boland v. Kaveny, Id. 488, 489, it was said that a transcript of the judgment record should always he brought up. In the present ease, no point of the informality having been taken in the brief of the appellee, an opportunity will be> allowed to the appellant to perfect her appeal by bringing up a certified transcript of the judgment record in the court below. If this be done within thirty days the cause may be placed upon the list de novo for argument at the next term; unless the appeal be thus perfected within the time specified it will be dismissed, with costs.