Simberskey v. Smith

Wright, J.

1. I concur in the proposition that appeals taken before the first Monday in January last would come directly to this court, and should be heard and determined here.

2. I hold in the second place, that all appeals taken since that time must go to the General Term, no matter when the judgment was rendered, and that there is nothing in the law authorizing an appeal directly to this court after the first Monday in January from a judgment of the District Court.

3. As to the time within which appeals must be taken, my opinion is, that a party could appeal, before the taking effect of the act under consideration, within a year, but I do not believe that this right to the year continues since the first Monday in January, 1869. After that, the time is limited to three months, and if more than that elapsed before the taking effect of the act, the right of appeal is lost. I might possibly concede that a party could appeal (to the General Term) within three months after the taking effect of the act, provided this would not extend it beyond one year. But I cannot hold that the year is given in all cases where judgments were rendered before.

And believing that the law is thus written, I hold that this appeal should be dismissed.

Dillon, Ch. J.

Respecting the effect of the act of 1868 as to appeals from judgments rendered prior to the taking effect of that act, the court concur in holding :

That down to the first Monday of January, 1869, an appeal, if taken, must be taken directly to the Supreme Court.

But suppose the year heretofore given in which to take an appeal had not elapsed, and an appeal is taken after the act of 1868 comes into operation, will it lie at all % and if so, must it be taken in. the first instance to this court or to the General Term ?

On this question a majority of the court hold that sections 17 and 18 of the act of 1868 relate exclusively to judgments and orders rendered and entered after that act went into operation; and as to these, appeals must be taken to the General Term, and within the three months allowed by section eighteen.

Judgments rendered anterior to the time when the act of 1868 went into force are not affected thereby, and an appeal therefrom lies directly to this court, and such appeal may be taken at any time within one year from the date of the judgment appealed from. In other words, as to such judgments, the provisions of the Revision, respecting ap peals, remain unaffected by reason of any thing in sections 17 and 18 of the act of 1868.

The subject has been fully considered, and the court, being of opinion that the above is the true meaning of the law, overrule the motions to dismiss the appeals.

Motions overruled.