In re Fifteenth Ave. Extension
Before: Department, McKinstry
Synopsis
■Appeal—Date oe Judgmekt.—Where a judgment is entered nunc pro tunc, as of a day previous to its actual entry, the time for appeal dates from the actual entry.
Service of Notice of Appeal.—Upon, a motion to dismiss an appeal on the ground that the notice xvas not served, the Court will be governed by the evidence of service contained in the transcript, and will not hear affi' davits to the contrary.
Department No. 1, Mr. Justice McKinstry, presiding: The judgment was, in fact, entered February 8th, 1878, and the notice of. appeal filed and served within the year prescribed by statute. The circumstance that the order was made nunc pro tunc, cannot affect the question. We all agree that the notice.of appeal was served within a year after-the entry of the judgment.
Mr. Crittenden.—“ My next point is, that there was no notice of appeal served in this case.”
Mr. Mullaney.—“ I have here an affidavit of the serving of the notice of appeal by delivering it to the cleric at the office of the counsel.”
Mr. Crittenden.—“ I have two affidavits that no service was made—my own, and the affidavit of my clerk.”
Me. Justice McKinstey.—“We must be guided by the evidence of service contained in the transcript.”
Mr. Crittenden.—“My next point'is, that this transcript.does not contain all of the judgment roll in the case. We make the suggestion of a diminution of the record.”
Mb. Justice McKinstey.—“ That is not a ground of motion to dismiss the appeal.”
Mr. Crittenden.—“ The grounds of my motion to dismiss are the same in each case.”
The Couet.—“ Let an order denying the motion be entered in each case.”
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