Smith v. Smith
Smith and Others v. Smith, Administrator of Ellsworth
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Opinion of the Court
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Worden, J.
Motion, by the appellee, to dismiss the appeal, or for an order that tbe appeal shall not operate to stay proceedings upon execution.
The cause was tried, and tbe judgment rendered, at tbe October term of tbe Court below, in the year I860. That term of the Court was continued, by adjournment, until November, in the same year. At the adjourned term the appeal was prayed, and granted, and an appeal bond filed and approved by the Court.
D. Mace, for the appellants. II. W. Chase and J. A. Wilstach, for the appellee.
Hie appellee insists, that the Court below had not jurisdiction to grant the appeal, and approve the bond, at the adjourned term, the judgment having been rendered at the regular term, and no appeal having then been prayed.
The statute provides, “ That if, at the close of any Circuit Court of any county, or where it shall become necessary, or proper, for said Court to adjourn from any cause, and the business pending therein shall be unfinished, it shall be lawful for such Court to adjourn until some other certain time, to be specified in such adjourning order, of which public notice shall be given in some manner to be specified by such Court; and at such time, such Court shall meet, and continue in session so long as the business shall require; and such adjourned term shall be deemed a part of the regular term of such Court,” &c. Acts 1858, p. 37.
The position assumed is, that the adjourned term is no part of the regular term, except for the purpose of disposing of unfinished business.
The argument implies, that whenever a judgment is passed in a cause, and the Court is continued to an adjourned term, it is out of the power of the Court to modify, set aside, or grant an appeal from, such judgment, at such adjourned term.
We do not, however, so interpret the statute. We think it is only where the business pending before the Court, is unfinished, that the Court is authorized to hold an adjourned term. Where the business is finished, there can be no necessity for such adjourned term. Where the Court does hold such adjourned term, it is to be deemed a part of the regular term; and every step may be taken at such adjourned term, that might have been taken at the regular term. Where the Court is continued from the regular to an adjourned term, the proceedings may be said to be in fieri, until the close of the adjourned term, and the records completely under the control of the Court.
Per Curiam. — We are of opinion that the appeal was properly taken, and that the motion must be overruled.
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