Irwin v. Muir

—A motion is made to dismiss the appeal from the judgment of the Marine Court to this court on two grounds.

1. That the notice of appeal was not served on all the justices.

2. That the notice of appeal does not contain the grounds of the appeal.

In answer to the first objection, it is sufficient to say that the notice was served on the clerk. Service on the clerk is all that is required by the statute (Code, § 354), and if the process *134of assimilation to the practice of the Supreme Court is to be extended by the act of 1853, so as to affect the notice of appeal, it is all that is required by section 327, as to appeals in the Supreme Court. Section 353 requires that the notice of appeal shall be served within twenty days after judgment, stating the grounds of the appeal. The opinion of Mr. Justice Mitchell in the Court of Appeals treats this section, as to the time of appealing, as still in force, as he says that the appeal is to be taken within twenty days after the "judgment of the general term of the Marine Court (The People on rel. Debenetti a. The Clerk of the New-York Marine Court, 3 Abbotts’ Pr. R., 309). If it remains in force in that respect, I see no reason for considering the residue of the section as affected by the act of 1853. There is nothing in it inconsistent with that act, and it is only what is inconsistent that is repealed thereby.

If there remain any appeal to this court, such appeal can only be made by serving a notice, as is provided by section 353, specifying the grounds of appeal.

We held in Griswold v. Van Deusen (2 E. D. Smith, 178), that the want of such a notice was sufficient ground for the dismissal of an appeal, and we have also held, in July, 1856, that such a notice was amendable by inserting the grounds of appeal. The application of the decisions in these cases will dispose of this motion.

The motion must he granted, unless the appellant within ten days amend the notice of appeal by serving a new notice containing the grounds of appeal, and pay the costs of this motion, ten dollars.