Jones v. Sabin — 122 A.D. 666

Majority

p. 666

G. Edwin Jones, Appellant, v. Harriet G. Sabin, Respondent.

First Department,

December 6, 1907.

Headnote

Appeal—judgment dismissing complaint fot failure tó file additional . undertaking not . appealable — prior orders not subject to review—-. constitutional law — when plaintiff’s property not taken, without -due process of law. . '

A judgment dismissing a complaint pursuant -to section 3277 of the Code of Civil • Procedure for a failure to comply with an order requiring an additional undertaking on the release of property from levy of attachment is not appealable to. the Appellate Division and that court has no power to review the various orders upon which the judgment is founded although mentioned in the notice of appeal. ■ - J

The right of appeal is statutory,- and section 1846 of the Code of Civil Procedure, prescribing from what judgments an appeal to the Appellate Division may he • taken, does- not include a judgment dismissing the complaint taken on motion pursuant to section 3277 of the Code of Civil Procedure, the same being analogous to a judgment by default, on which the remedy is to'move to open the default and appeal from the order denying it.

Although section 3216 of the Code of Civil Procedure provides that an appeal from a final judgment brings up for review an interlocutory judgment or. intermediate order specified in the. notice of appeal which necessarily 'affects the final judgment, such orders are reyiewable only when an appeal lies from •the judgment. ' .. . ■:,

An appeal from a> judgment" dismissing a complaint on motion pursuant to section 3277 of the Code of Civil Procedure, cannot be construed as a direct appeal, ■from various orders mentioned in the notice when, the review is asked only by virtue of the appeal from the'judgment. ’

Although the defendant’s answer set up á counterclaim the dismissal of the cómplaint for failure to file an additional undertaking is not a violation of the plaintiff’s property rights under the 14th amendment to. the Federal Constitution, when no affirmative relief was asked or obtained by the defendant - upon the counterclaim on the dismissal of the'complaint. . . . '

Appeal by the plaintiff, Gr. Erl win Jones, from a judgment of the Supreme Court, in'favor of the deféndant, entered in the office of the cleric of the county of Hew York on the 17th day of June, 19Ó7, upon an order entered, on the 14th day of -June, 1907, .dismissing the complaint because of the failure of the, plaintiff to give an undertaking increasing the security given by him upon procun inga warrant of attachment against'thedefendan.t, with notice of an. intention to bring up for review upon such appeal an order entered

p. 667

in said clerk’s office on the 22d day of March, 1907, granting the defendant’s motion to increase said security, also an order entered on the 12th day of March, 1907, granting the defendant’s motion to amend nunc pro tuno an order entered on the 24th day of November, 1906, and also the order of June 14th, pursuant to which the judgment appealed from was entered.

James G. lenney, for the appellant.

Theodore 8. JRumney, Jr., for the respondent.

The plaintiff brought action upon contract against the defendant, a nonresident, and obtained a warrant of attachment, and levied upon certain moneys in bank belonging to defendant.

The defendant desired a release of the moneys from the levy of the attachment and filed an undertaking releasing them.

Instead of obtaining an order releasing the levy on such undertaking, her attorneys presented to plaintiff’s attorneys a stipulation for “ discharging the attachment ” according to an annexed order, which order not only provided for a discharge of the levy but vacated the attachment itself. On the signing of the stipulation by the attorneys for both parties, the defendant entered the order and shortly thereafter discovered her own mistake in providing in the order that the attachment be vacated, whereas she desired simply the discharge of the levy thereunder,, and made a motion to be relieved from that part of the order vacating the attachment, which motion was granted and the attachment thus restored with the levy discharged. Thereupon the defendant moved that the plaintiff be compelled to give additional security on his attachment, and that motion was granted, requiring plaintiff to give an additional undertaking of $3,000. This undertaking plaintiff failed to give, whereupon defendant moved under the pro vision § of section 3277 of the Code of Civil Procedure for judgment dismissing plaintiff’s complaint, with costs, which motion was granted and such judgment entered.

By his notice of appeal the plaintiff states that he appeals from this judgment giving its date and place of entry, and states that

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on such appeal he will bring . up for review the various orders above enumerated.'

. Section 3277 of the Code specifically prescribes that on failure to comply with the order for an additional undertaking on the part of plaintiff, the defendant may apply for judgment as upon a motion.

■We are of the opinion that a judgment so entered is not appeal-able to this court, and that it not being appealable this court has-no power to review the various orders mentioned in plaintiff’s notice of appeal.

Section- 1346 of the Code prescribes from what judgments an appeal may be taken to this court, and they are judgments rendered upon- a trial by a referee or by the court without a jury, and those rendered upon the verdict of a jury.

The judgment against plaintiff was not rendered upon a trial and does not come within the provision permitting an appeal. It is more analogous to a judgment by default, in which the remedy is to move to-open the default and appeal from the order denying it. (Hawkins v. Smith, 91 Hun, 299 .)

It is true that section 1316 provides that an appeal taken from a .final judgment brings up for review an interlocutory judgment, or an intermediate order, wdiich is specified in the notice of appeal and necessarily affects the final judgment; but it is manifest that the appeal referred to must be one taken from a judgment that is appealable. The'right of appeal is a statutory one and can only be taken from such judgments as the statute authorizes. (Garczynski v. Russell, 75 Hun, 512 .)

Section 1209, which provides that a final jtidgment dismissing the complaint either before or after a trial, do'es not prevent a new action for the same cause, unless it so expressly declares or it appears by the judgment roll that it is rendered upon the merits, does not help the situation. The words “either before or after, a trial” refer to the dismissing of a complaint and the rendering of judgment thereon in an action which is brought oh for trial either upon issues of law or of fact, and either before evidence is taken or after it shall have been taken. Such a judgment would be a final judgment and one appealable under the provisions 'of' section 1346.

Jior can plaintiff’s notice of appeal -be construed as a direct

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appeal from the various orders mentioned in it. There .is no statement that the various orders are appealed from, and they are asked ' to be reviewed only by virtue of the appeal from the judgment. This appeal being unauthorized, the review of the orders must fall with it.

If we felt authorized to do so we should be inclined to grant the plaintiff some relief. The-judgment entered, however, is not a bar to another action which plaintiff can bring if he sees fit.

It is urged that because defendant’s answer set up a counterclaim the dismissal of plaintiff’s complaint is in violation of his property rights under the 14th amendment of the Federal Constitution^

Ho affirmative relief was obtained or asked for by the defendant upon her counterclaim when she applied for judgment of dismissal of plaintiff’s complaint. The situation is unlike that in Sibley v. Sibley ( 76 App. Div. 132 ) and Hovey v. Elliott ( 167 U. S. 409 ), upon which plaintiff relies. In those cases á party’s pleading was. stricken out and the action continued and affirmative relief given against him.

The appeal must be dismissed, but, under the circumstances, without costs. '

Patterson, P. J., McLaughlin, Laughlin and Lambert, JJ., concurred.

Appeal dismissed, without costs. Settle order on notice.

Cases cited

Hovey v. Elliott 167 U. S. 409 SCOTUS 1897-05-24 p. 669