Gates v. Williams

After reversal by this court of the order of the court below, the respondent for the first time objects to the jurisdiction of this court to hear and determine the appeal; and leave to reargue the appeal is applied for to enable her to interpose the objection, which is predicated exclusively of the fact that, as alleged, judgment of reversal was not entered in the court below on the order appealed from, and here reversed at the time when the appeal was taken. From the affidavit of counsel for the appellants sub*147mitted on this motion, it appears that judgment of reversal was entered in the court below when the appeal from the order granting a new trial was argued, submitted, and determined. The return of the court below did not include the judgment of reversal in extenso; but, if the return was defective in that respect, the respondent could have had it amended upon proper application. Failing such an application, she must be deemed to have waived the defect. This court was justified in entertaining and determining the appeal, since from the return of the court below, certified as required, it appears that “judgment was in due form entered” on the order of reversal and granting a new trial. Motion for reargument denied, with $10 costs.