Arkenburgh v. Arkenburgh

43 N.Y.S. 892 | N.Y. App. Div. | 1897

Rumsey, J.:

By this appeal the defendant seeks to set aside an execution issued upon an existing judgment, although the execution itself, so far as appears, is entirely valid. He seeks also upon the appeal from the order denying the motion to set aside the. execution to review two other orders, long before made, denying motions to set aside the judgment, although, it seems, separate: appeals have been taken from those orders, and are now pending in this court. As to so much of his appeal, it clearly cannot be maintained. The right upon an appeal from one determination to review another determination, not. necessarily dependent upon it, is confined exclusively to an appeal taken from a final judgment and from a final order in special proceedings. (Code Civ. Proc. § 1301.) Therefore, so much of his appeal as attempts to review the orders of the court below, denying the motion to set aside this judgment, cannot be considered here. But, nevertheless, we are bound to consider the proceedings upon which the judgment was entered, so far as to enable us to ascertain whether there was jurisdiction in the court to enter it, for, if there was no jurisdiction, and the judgment is void, then it is no judgment, and there was no right to issue an execution upon it.

In the examination of that question." we start, in the first instance,with the fact established that the order of publication in this action was properly made, because that had been determined by every court. to which an appeal could be taken. (Arkenburgh v. Arkenburgh, 148 N. Y. 756.) There is no complaint upon the part of the defendant that'there was any defect in the service of . the summons, and that service seems to have been sufficiently proved by the papers filed with the judgment roll. It is not disputed that an attachment was granted, and the papers show that it was properly levied. The court, therefore, acquired full jurisdiction in the case.. The only ground, then, upon which the defendant can stand is that there was. some irregularity in the proceedings taken: before the court for the entry of' judgment, after the court had acquired jurisdiction by the service of the summons, pursuant to the order of publication. If there was any irregularity subsequent to that time, in the giving of notice in the proceedings to enter judgment, such an irregularity is not jurisdictional in its nature, and the judgment, although it might be liable to be set aside, would not be void, and, until it was set aside, an execution issued upon it would be perfectly good.

But there was no irregularity in the proceedings. There was no general appearance of the defendant- in the action. Although it seems that he has become a resident of this= State-since the summons was served, he has carefully avoided any such appearance in the action as would give the. court full jurisdiction of his, person. The-only thing that he caused to be done was to demand, notice, of the execution of any reference or writ of inquiry which might, be granted upon any application." ■ This -was" not a, general appearance and did not entitle him generally to notice of the' proceedings in the. action. All: that it entitled him to! was five days’ notice of the time and place of the execution of the reference. (Code Civ. Proc. § 1219, subd. 2.) This he had, and not only did he have it but he appeared upon the execution of that reference. He was not entitled to any notice of the application to the court for the appointment of a referee or the application to confirm the report of the referee after it had been made. The appearance which he made in the case was limited; it was made for a special purpose and it gave him only just such rights as the Code said he was entitled to, and if he secured those rights he must be contented. If lie desired any further notice he could only become entitled to it by appearing generally in the actión, which he did not see fit. to do,. The papers required by section 1217 of the Code of Civil Procedure appear to have been in the judgment roll, and the printed case com tains each one of them in precisely the form directed by the statute. The effort on the part of the defendant here to attack.upon this-motion the sufficiency of the proof which was given before the referee, and upon which the court acted in directing the judgment against the defendant, is. of no- avail. When he failed to. appear and-answer in the-case he was not in a situation to deny any of the facts alleged in the complaint, and if proof taken before1 the court or referee was sufficient in any aspect off the cage to .satisfy a judge that a cause of action existed, it is enough, and the defendant, who has 'no standing except to be present upon the execution of the reference, cannot be heard to complain, He cannot,. Upon such a limited appearance as he chose to make, litigate the question whether a cause- of action against him exists. '

Upon a- careful examination of the case, we are- of the opinion that not only was this judgment perfectly valid,, but that there was no irregularity whatever in the steps that were taken leading up to it, and that it is entirely good. The execution, therefore, had a valid judgment behind it and no ground appears for setting it aside. The order denying the motion to set it aside must be affirmed, with ten dollars costs; and disbursements.

Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred. '

■ Order affirmed, with ten dollars costs: and disbursement's.