Doelger v. Chelsea Exchange Bank

The appeal in this case was taken on October 23,1915, and the appellant ordered the minutes which were duly filed by the stenographer. On November 12, 1915, the appellant served a notice of settlement of the case on appeal returnable on November twenty-seventh, a period of fifteen days from the date of service. Thereupon the respondents on November fifteenth served a notice of settlement returnable on November nineteenth. This notice the appellant returned upon the ground that there is “no provision or justification in the statutes or court rules for a notice of settlement of proposed case on appeal to be *406served by the respondent or Ms attorney.” The respondents now move to dismiss the appeal. Rule 3 of the Rules of Practice for the hearing of appeals from the Municipal Courts provides that the appellant or his attorney must, within two days after receipt of the notice that the stenographer’s minutes are on file, procure the case to be settled on a written notice “of at least three days.” The appellant claims that he has complied with this rule by giving a notice of fifteen days. Literally this is true, but the object of the rule is clear and that is to compel the return to be expeditiously and promptly filed in this court. While we have not intended to specify any precise day on which the notice must be returnable and have provided ample notice to the respondents, it was not intended that the rule should be abused and the settlement of the case unreasonably delayed and especially when the notice, if observed, has the effect of putting the case over a term. Nor is there any good reason shown — certainly no statute or rule is violated by allowing the respondent to serve a notice of settlement when he knows that the minutes are on file.

Motion to dismiss granted with ten dollars costs unless the appellant causes the return to be filed on or before December first, provided the respondents accept one day’s notice of settlement. Appellant to file briefs on or before December fourth. Respondents to file and serve briefs on or before December seventh.

Motion to dismiss granted.