Cameron v. Equitable Life Assurance Society of the United State

Headnote

I. Appeal from, interlocutory judgment.

1. Dismissal of.

(a) After an appeal from a final judgment entered upon an interlocutory one (no appeal having previously been taken from the interlocutory judgment) had been dismissed, an appeal was, on December 4, 1879, taken from the interlocutory judgment which had been entered March 14, 1879. On motion this ap peal was dismissed.

H. Final judgment entered on interlocutory one.

1. Opening so as to permit dependant to answer.

(a) Defendant had lost his right to review the interlocutory judgment by not properly appealing. •

1. Motion to open final judgment and allow an answer on the ground that such right of review had been lost through mistake is denied.

This action was brought for the conversion of an insurance policy. The defendant demurred to the plaintiff’s complaint.. The demurrer was overruled, and an order to that effect, giving leave to the defendant to answer, was entered September 10, 1878. Defendant did not answer, but appealed from this order overruling the demurrer. This appeal was, however, not immediately brought up. Subsequently the plaintiff moved for judgment, and thereupon, on March 14,1879, a judgment for damages was entered, directing that the damages should be assessed by a sheriff’s jury. The inquisition was taken, and upon it and the other proceedings, final judgment was entered by the clerk on March 31, 1879, for $5,625.96. From this final judgment the defendant appealed to the general term, and this appeal from the final judgment, and also the appeal from the order overruling the demurrer, were brought on for hearing at the general term óf May, 1879.

The general term rendered a decision at the November term of 1879, dismissing the appeal from the order overruling the demurrer, and deciding that the appeal from the final judgment brought up nothing for review, as the notice of appeal contained no notice that any intermediate order or interlocutory judgment would be

reviewed, and affirming the final judgment. Opinion by Speir, J. ( 45 N. Y. Super. Ct. 628 ).

Subsequently, on December 4, 1879, the defendant served a notice of appeal from the interlocutory judgment of March 14, 1879 ; and also made a motion at special term to set aside the final judgment and allow the defendant to answer, on the ground that by the mistake, inadvertence, and excusable neglect of the defendant’s counsel, the defendant had lost his right of appeal. The judge, at special term, referred the parties to the general term. At the general term of this court, held in January, 1880, the appeal from the interlocutory judgment was heard, and also the motion of the defendant to set aside the final judgment on ground of mistake of counsel. The plaintiff, at the same general term, moved to dismiss the appeal from the interlocutory judgment.

Decision was rendered in March, 1880, denying the motion of the defendant, and dismissing the appeal from the interlocutory judgment. .