Fairchild v. Daten

Opinion — Rhodes

Rhodes, J., delivered the opinion of the Court:

The appeal was taken on the 17th of May, 1869, from “the whole of the judgment or order filed on February 6th A. D. 1869, directing the award between the above named parties to be entered in the judgment book.” The transcript shows an order made and filed on the 6th day of February, 1869, denying the defendant’s motion to vacate the award on certain grounds specified in the motion, and ordering the clerk to enter the award in the judgment book, etc.; and this is the order from which the appeal is taken; but no appeal was taken from the judgment.

The respondent moves that the appeal be dismissed, and one of the grounds urged in his brief is, that the appeal was not taken within the proper time. This ground is not waived by the failure to state it in the motion to dismiss, for it goes to the jurisdiction of the Court; but it is the better practice to take it at that time, as the appeal might be disposed of upon the motion, and parties would be spared the labor and expense of preparing briefs on the merits.

It is provided in Section 888, of the Practice Act, that “the decision upon the motion shall be subject to appeal in *287the same manner as an order which is subject to appeal in a civil action.” The motion mentioned is such as maybe made under Sections 386 and 387, the sections under which the motion before us was made. An appeal from an order must be taken within sixty days from the time the order is made and entered in the minutes of the Court (Sec. 336); and it not having been taken in this case within the prescribed time, the appeal must be dismissed.