Buffendeau v. Edmondson

By the Court, Currey, J. When this case was called in its order on the calendar, the respondent, by his counsel, in pursuance of notice given for the purpose, moved the Court to dismiss the appeal, on the ground that the copy of the notice of appeal was served on the attorneys for the respondent two days before the notice itself was filed in the Clerk’s office of the Court wherein the judgment and order from which it was desired to appeal were entered. The record shows that the notice of appeal was filed on the 27th day of July, 1863, and that a duplicate thereof was served on the respondent’s attorneys on the 25th day‘of the same month, and that on the day of the filing of the notice an undertaking on appeal, executed on the 25th of July, was also filed.

The three hundred and thirty-seventh section of the Practice Act provides that an appeal in a civil case shall be made by filing with the Clerk of the Court in which the judgment or order appealed from is entered a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice upon the adverse party or his attorney.

By this section of the statute the filing of the notice of appeal is made a constituent element of its character as a notice, and consequently must precede or be cotemporaneous with the service of a copy of the notice on the adverse party, otherwise that which may purport to be a copy of a notice, or a duplicate thereof, fails to be such for the want of an original or counterpart. This section of the Act does not provide, in terms, within what time the copy of the notice must be served ; but, 'considered in connection with sections three hundred and [96]forty-eight, three hundred and forty-nine, three hundred and fifty, and three hundred and fifty-two of the Act, requiring an undertaking to be executed and filed, or a deposit made as therein specified, to render the appeal effectual, and also in connection with section three hundred and fifty-five, which gives to the respondent five days after the filing of the undertaking within which to except to the sufficiency of the sureties therein named, it follows that the copy of the notice filed must be served on the proper party before or at the time of filing the undertaking. This construction is rendered imperative in order to secure to the respondent the full five days from the filing of the undertaking within which to except to the sufficiency of the sureties. To comply with these provisions of the Act is a matter of no inconvenience because of the residence of the attorneys of the respective parties in different places, inasmuch as the Act provides a mode of service by mail in such case, at once convenient and effectual. (Practice Act, Sections 520, 521, 522.)