McKenzie v. Minard

• Decision Date: 24 October 1907
• Citation: McKenzie v. Minard, 67 A. 936 (N.J. 1907)
• Parties: McKENZIE v. MINARD.
• Court: New Jersey Supreme Court

67 A. 936

McKENZIE

v. MINARD.

Prerogative Court of New Jersey.

Oct. 24, 1907.

Appeal from Orphans' Court.

Appeal by William H. McKenzie, temporary administrator, from an order of the orphans' court appointing Duane E. Minard administrator.Appeal dismissed.

R. Wayne Parker, for the motion.Alonzo Church, opposed.

MAGIE, Ch.The motion to dismiss the appeal in this cause must prevail.By rule 2 of the Prerogative Court, upon an appeal from the order, sentence, or decree of the orphans' court, or from the proceedings of a surrogate, the party appealing shall cause a transcript of all the proceedings before the surrogate or orphans' court to be made, authenticated, and returned to this court within 20 days from the time of entering the appeal in the court below, or the ordinary may dismiss the appeal, unless further time is allowed for the return of the transcript.The notice of appeal appears to have been filed in the orphans' court on August 15, 1907.The transcript was filed in this court on September 5th following, being one day beyond the required time.

The power to dismiss the appeal because the transcript is not filed in time is conferred on the court, but the ordinary is not required to exercise that power unless he is satisfied that it should be done.It is rarely exercised for a slight lapse in conformity with the rule if there has been disclosed, on the part of appellant, a disposition to prosecute his appeal diligently, and there appears to be some ground for a review of the order complained of.The appeal has not been prosecuted diligently.No order to answer was taken by the appellant.If taken, the...