Crain v. Rowley

Decided July 15, 1849

New York Court of Appeals · decided 1849-07-15

—At the last May term of this court, a motion was made to dismiss the appeal in this cause, on the ground that the return had not been filed. The motion was granted, unless the return was filed in twenty days, &c. At this term this motion was made by respondent, on notice to have the cause placed upon the calendar as of the day the return should have been filed, if it had been regularly filed after the notice of appeal was served. The motion was not opposed.

Decided 1849-07-15

¶1 *80The question arose, whether under rule 15 of this court, a motion properly made upon notice, should not be granted of course, where there was no opposition.

¶2The court said they had the control of their own calendar; and of course, any motion which tended to interfere with their power in this respect, would be examined and disposed of on the merits.

¶3They denied the motion on the ground, 1st. That this question should have been introduced and decided upon the motion made at the May term. Then was the proper time to have disposed of it,

¶42d. That to allow a motion of this kind, permitting a cause to be placed on the calendar as of the time the return should have been regularly filed, would be, to derange the whole calendar, because many of the returns made to the court are undoubtedly filed after the regular time prescribed by the statute and the rules, of the court. ,