Delany v. Delany

Headnote

Judgment —opening upon condition—vacating.

The court has the right to impose it, as a condition of opening a default, that there shall be a reference and a speedy trial. If the defendant does not choose to take the order, with the condition, he is at liberty to decline its benefits, and allow the judgment to stand; or, he may appeal from that part of the order imposing the condition. But, after proceeding upon the order, and after a -judgment has been entered against him upon the referee’s report, he cannot move to set aside the judgment as irregular.

Appeal from an order of special term, denying defendant’s motion to vacate and set aside the order of reference in this action, the judgment thereon and the subsequent proceedings, as illegal and void, on the ground of want of jurisdiction and irregularities. This action was for a limited divorce, and the complaint alleges abandonment and cruel treatment as the grounds for the decree asked for. Judgment was taken against defendant by default, March 30, 1870. On April 6,1870, Judge Beady made an order that the default be opened, the judgment to stand as security, and that the cause be referred. The trial before the referee then proceeded till October 5,1871, when his report was filed and a judgment entered thereon for a limited divorce. Defendant objects to the order of reference, on the ground that the court had no jurisdiction to grant a reference without consent, and also for alleged irregularities in the various proceedings. There is a conflict as to whether the order opening the default was duly consented to by defendant’s attorney. Judge Istgraham, in making the order appealed from, delivered the following opinion: "The judgment was opened by Justice Brady on condition that the case should go to a reference, and he so ordered. If the defendant objected to the reference, he should have appealed from the order.”