New York City Baptist Mission Society v. Tabernacle Baptist Church

Majority

p. 527

The New York City Baptist Mission Society, Respondent, v. Tabernacle Baptist Church, Appellant, Impleaded with Others.

Headnote

Practice—a judgment entered is not void although not folioed—service of a copy with notice of its entry limits the time to appeal — return of an unfolioed copy, necessary.

A judgment entered pursuant to the direction of the court, though not folioed, is not void, but merely irregular, and service of a copy thereof, with notice of its entry, will be effective to limit the time in which an appeal can be taken therefrom, unless the judgment be set aside because of irregularity.

If a party desires to take advantage of the fact that the copy of a judgment served upon him was not folioed, he is bound to return it and to apprise the opposing attorney of the irregularity to which he objects.

Appeal by the defendant, the Tabernacle Baptist Church, from an order of the Supreme Court, made at the New York Special

p. 528

Term and entered in the office of the clerk of the county of New York on the 22d day of September, 1896, denying its motion to compel the attorney for the plaintiff to receive a notice of appeal

Frank Harvey Field, for the appellant.

Edward S. Clinch, for the respondent.

It is admitted that the time to appeal has expired since the service upon the defendant of a copy of the judgment sought to be appealed from and á written notice of the entry thereof. It is urged, however, that the time did not commence to run because neither the judgment-as entered nor the copy served was folioed as required by rule 19 of the General Rules of Practice. It is claimed that the clerk had no power to enter the judgment, and it was, therefore, void. This position, however, cannot be sustained. The want of folioing was a mere irregularity. The court that tried the case had directed the clerk to enter the judgment, and the clerk was bound to follow that direction. If the attorney for the defendant desired to take advantage of this irregularity, it was necessary for him to move .to set aside the judgment, and the court, if the ends of justice required it, would grant the motion. But the judgment is not void'. It was good as a judgment so long as it remained of record, and a copy of this judgment with notice of entry thereof was served.' If the copy served had been folioed and the judgment entered had not been, it might very well have been claimed by the defendant that a copy of the judgment as entered had not been served upon him.

Furthermore, if the attorney for the defendant desired to take advantage of the fact that the copy served upon him was not folioed, he was bound to return the same and apprise the attorney for the plaintiff of the irregularity complained of. As already stated, the failure to folio being a mere irregularity not ousting the court of jurisdiction, so long as the judgment remained of record it was a good judgment for all purposes and, would not be set aside because of this irregularity, unless the ends of justice required it. The defendant has mistaken his remedy. He should have moved to vacate the judgment because of the irregularity.

p. 529

The order should be affirmed, with ten dollars costs and disbursements.

Williams, Patterson, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.