Society of New York Hospital v. Knox

delivered the opinion of the court.

It is objected that this case cannot be docketed for trial at this term of court, but should be docketed at the October Term. The appeal was taken on April 14, less than ten days prior to the commencement of this term, and it is insisted that in such case the appeal is properly returnable to the next succeeding term. This is true of appeals granted after the term in which the decree appealed from is entered, for as to them *602Code 1871, § 431, requires citation to be issued and served on the appellee ten days prior to the return day of the appeal. But no citation is required when the appeal is granted by the court in term time, and at the same term at which the order or decree appealed from is entered. The appellee is presumed to be present when the appeal is allowed, and is bound to take notice of it as of every other order entered in the cause. The statute, Code 1871, § 408, requires all appeals to be made returnable to the first day of the term of this court, or the first return day fixed by order of court next succeeding the appeal. As to appeals in which citation is required, the ten days, when required, has the effect of making the appeal returnable after the expiration of that time. But that section can have no operation except in the cases embraced in it, viz., appeals granted after the term at which the decree appealed from is entered. Should an appeal be taken so near the commence.ment of the term or the return day fixed by order of court, as not to allow reasonable time for the parties to prepare the cause for hearing, that matter would be considered on an application either for a continuance or for delay in calling the case for hearing.

Becord ordered to be docketed to this term.