Hansen v. Walsh

The action was for libel and the plaintiff- made a motion for a preference. This motion was denied, and from the order entered upon that denial the plaintiff appealed. The plaintiff failed to serve' the printed copies of the papers upon the appeal, as required by rule 41 of the General Rules of Practice, whereupon he made a motion at the Special Term to be relieved from the default. This ■ default was in failing to file with the clerk of this court and serve upon the opposite party the papers upon which the appeal is to be heard in this court. Where there is a default in the service of a case on appeal, or in the filing of a case," as settled by the trial judge or referee, an application to open that'default should be made at the Special .Term; and where-the default consists of a failure to file the printed copies of the papers on which the appeal is to be heard in this court, or to serve copies thereof upon the opposite party, the default is in this court.

■ The preparation, settlement and filing of the case, or bill of exceptions, is a part of the record of the court below and is to be prepared, *40settled and filed there, and an application to be relieved from a default must be made at Special Term. After the case is settled and filed, as-q?rescribed by the Code and General Rules of Practice, the filing and service of the printed papers upon which the appeal: is to be heard, as required by the General Rules of Practice, are a part of the appeal, and any default is a default in a proceeding which is a part of the appeal-and is regulated by the rules of this court.

The question whether such a default should be enforced must be settled upon a motion made in this court either to he relieved from the default dr dismiss the appeal.

■ The order appealed from is affirmed, with ten dollars costs and disbursements.

Pattebsob, P. J., Laughlib, Glaeké and Scott, JJ., concurred.,

Order affirmed, with ten dollars costs and disbursements. Order filed. '