Oliver v. French — 61 N.Y. St. Rep. 782

Majority

p. 782

Effie B. Oliver, Resp’t, v. Margaret R. French et al., Def’ts. Def'ts Emma J. Kenworthy and Charles A. Kenworthy, App’lts.

(Supreme Court, General Term, Third Department,

Filed July 14, 1894.)

Headnote

Appeal—Appealable—Judgment by default.

An appeal does not lie from a judgment by default.

Appeal from a judgment in favor of plaintiff.

Action by Effie 13. Oliver against John W. French, Emma Jane Kenworthy, individually, and as executrix and trustee under the will of Charles W. Kenworthy, deceased, Charles A. Kenworthy, Oasper P. Collier and Edward P. Magoun to have a sale of mortgaged real estate, made under a judgment of foreclosure of the mortgages thereon, set aside and vacated, together with the referee’s deed on such sale, and all subsequent mortgages on and conveyances of the premises, and for a resale of such mortgaged premises under such judgment of foreclosure. Defendant John W. French died after the commencement of the action, and Margaret B. French and Frances M. French, his widow and daughter, respectively, were substituted as defendants in his place.

J. Rider Cady, for app’lts; A. Frank B. Chace, for resp’t.

—This case on appeal contains none of the evidence, and there are no exceptions to the findings of fact or conclusions of law of the learned trial justice on the trial, and the appellants now seek to reverse the judgment solely upon the alleged ground that the conclusions of law of the learned trial judge are not supported by the facts found by him. The appeal is by Charles A. Kenworthy and Emma, J. Kenworthy, individually, and as executrix and trustee under the will of Charles W. Kenworthy, deceased. The judgment in this case as to Emma J. Kenworthy, both as an individual and in her representative capacity, was entered by default, she not having appeared or answered in the action. We do not see' how she can question this judgment taken against her by default The right of a party to appeal is provided for in § 1294 of the Code of Civil Procedure. That section provides as follows: “A party aggrieved may appeal in a case prescribed in this chapter, except when the judgment or order of which he complains was rendered or made upon his default." This exception, by clear implication, deprives a party in default of an appeal. The only remedy left for a party in default, who is aggrieved by a judgment or order, is to open the default, and thus take issue upon the law or facts, and upon such issue have a determination in the trial court, where an appeal from such

p. 783

determination can be taken. The right of a party to be heard on an apipeal in cases where an appeal is not given by statute was determined in Trevettt v. Barnes, 110 N. Y. 503 ; 18 St. Rep. 533 . There a party sought to be heard on an appeal in the court of appeals where the amount in controversy was less than $500. when the action was one not affecting the title to real property, or an interest therein, and that court held that the appeal must -be dismissed, under the provisions of subdivision 3 of § 191 of the Code, which contains exceptions to the general jurisdiction of that court, that case coming within one of those exceptions. It would seem, therefore, that this court is entirely without jurisdiction to hear and consider this appeal of Emma J. Kenworthy. Avery v. Woodin, 44 Hun, 266 ; 10 St. Rep. 160 ; Flake v. Van Wagenen, 54 N. Y. 25 . It is also insisted by the respondent that the same is true as to the appellant Charles A. Kenworthy, no answer or demurrer having been made as to him, and, although an "infant at the time of the foreclosure and sale under the mortgage sought to be set aside, he was of full age at the time of the commencement of this action, and cannot be heard on appeal from a judgment taken against him by default. In this respect we see no reason for any distinction between his right to appeal and that of Emma J. Kenworthy, the other appellant, and think the disposition of the appeal its to her must follow in his case. It is also objected by the learned counsel for the respondent that there is no.question in this case, as made and presented, wdiich this court can consider on the appeal in behalf of the defendants Emma J. and Charles A. Kenworthy, as no exceptions were taken by them to any of the findings of fact or conclusions of law of the learned trial court, and that, within the rules of law and practice, nothing is presented to this court for its determination. Sections 992-994, 998 of the Code of Civil Procedure provide for the manner of raising questions of law upon the findings or refusals of the judge to find, on questions of fact, or upon his conclusions of law, where exceptions are taken. Section 996 provides that “ a ruling to which an exception is taken as prescribed in the last four sections can be reviewed only upon an appeal from the judgment rendered after a trial," etc. The appellants, as we have seen, having suffered judgment to pass against them by default, are, as we think, in no condition to review the judgment on appeal, and, no case or exception being before this court, it has no power to review the facts or law so ably discussed by counsel for the appellant, and examination of the same upon the merits is unnecessary. Judgment affirmed, with costs.

Putnam, J., concurs; Herrick, J., concurs in result.

Cases cited

Flake v. Van Wagenen 54 N. Y. 25 N.Y. Comm'n App. p. 783