Mills v. Miller — 34 N.Y. St. Rep. 999

Majority

p. 999

The Phoenix Mills, App’lt, v. James A. Miller, Resp’t.

(Supreme Court, General Term, Third Department,

Filed December 12, 1890.)

Headnote

Former adjudication—Foreclosure—Appeal.

In a ioTtner action, of foreclosure of the premises in question the plaint-tiff here, the Phoenix Mills, though not a party hy the summons was subsequently allowed to come in and defend. Upon the sale therein the defendant purchased the premises in question. The Phcenix Mills opposed confirmation of the sale and was defeated. In the former action one of the defendants therein attempted to appeal from the judgment, but the notice of appeal was signed hy an attorney other than the one hy whom that defendant had already appeared therein and answered. This notice was returned as irregular, there having been no order of substitution, and it was thereafter held hy the general term and hy the court of appeals that this notice did not perfect an appeal. The Phoenix Mills did not appeal in that action In this action of ejectment, Held, that the question whether the _ notice of appeal was sufficient could not be raised, having been determined in the former action in which the court had jurisdiction of the parties.

Appeal from judgment dismissing complaint.

Edward J. Maxwell, for app’lt; M. L. Stover, for resp’t.

This is an action of ejectment. On the 18th. of August, 1884, an action of foreclosure was commenced by David W. Shuler against Margaret Maxwell and others. The Phcenix Mills held an unrecorded deed of part of the premises ; which deed it recorded September 3, 1884. Thereupon the Phcenix Mills applied for leave to come into the Shuler action; and, by consent of the attorney for Shuler, the Phcenix Mills put in an answer in that foreclosure action.

The cause was referred and on the referee’s report the usual judgment of foreclosure was granted, April 7, 1885, the Phcenix Mills appearing by Mr. E. P. White.

About the 10th of June, 1885, and before the sale, Margaret Maxwell caused a notice of appeal from the judgment to be served by E. J. Maxwell as her attorney with an undertaking.

This notice was returned as irregular; and the sale took place June 12, 1885, at which defendant Miller bécame the purchaser.

He received the referee’s deed and was put into possession under an order of dispossession dated September 1, 1885,. by the defendant. Snell, a deputy sheriff.

A motion was made by Elizabeth Maxwell to set aside the sale, which was denied July 17, 1885. The denial was affirmed at general term, November, 1885. Shuler v. Maxwell, 38 Hun, 240 . An appeal to the court of appeals from the order of affirmance was dismissed.

Still another motion to set aside the sale was made by Elizabeth Maxwell, and decided June 14, 1887. A motion was made July 7, 1885, by the Phcenix Mills and by Margaret Maxwell to set aside the order of confirmation of the referee’s sale. This was denied and the sale and'report were confirmed.

Now the plaintiff’s ground is that Margaret Maxwell’s appeal and undertaking stayed the proceedings in the foreclosure.

That, therefore, the sale was void and Miller obtained no title.

Now it was decided by this court in the case above cited that the alleged notice of appeal and undertaking did not stay the proceedings. The appeal from the order was dismissed by the court of appeals and, therefore, that court could not have held that the decision of this court was erroneous in matter of law.

In the next place the Phcenix Mills did not appeal, so that even if Margaret Maxwell had ground of complaint that the sale proceeded after her alleged appeal, the Phcenix Mills had none.

The judgment of sale against the Phcenix Mills was not objected to by that corporation, and the sale, therefore, proceeded with the practical consent of the Phcenix Mills.

Again, the Phcenix Mills and Margaret Maxwell were heard on the motion to set aside the order of confirmation and that motion was denied, and the sale and report were confirmed.

Therefore, as against the Phcenix Mills, that sale must stand as-valid and binding. The plaintiff urges that Miller was not a party to that order and, therefore, there is no mutuality and hence no estoppel. But Miller claims under the sale and the order confirmed the sale.

He may well insist that the Phcenix Mills shall not be allowed.

p. 1001

in another action to review or reverse that order of confirmation. Farther still, if the appeal alleged to have heen taken by Mar-g'aret Maxwell had been valid, and with the undertaking had entitled her to a stay of proceedings in the action, and if, notwithstanding this, a sale had been made and had been, confirmed, we are not prepared to say that in another action that sale could be held invalid as to a bona fide purchaser at the sale.

Evidently the court had jurisdiction of the parties. If its proceeding was irregular or even contrary to the rules of law, the remedy should be had in that action. If the court officers disregard a stay of proceedings, they must be controlled by the court in the action in which the disregard occurred.

The plaintiff here would have the court in one action hold that a sale was without jurisdiction, which was made in another action and which was confirmed by the court.

We are not willing to take that position.

Judgment affirmed, with costs.

Landon and Mayham, JJ., concur.