60 Barb. 117 | N.Y. Sup. Ct. | 1870
The papers on this motion aré voluminous ; but the facts on which the decision must turn are few and simple. About December 1, 1860, the plaintiff
On the 30th day of March, 1861, an order of reference to compute the amount was granted, which did not require the taking of proof of facts or the examination of the plaintiff as to the payments, and thereupon, on the same day, the usual judgment of" foreclosure and sale was taken and the roll filed. The property was sold under the same, about April 22, 1861; Frances E., Charles D., and Mary A., being still infants. The referee’s report of the sale cannot be found. By his deed it appears that the
Subsequently the plaintifij having thus obtained the title, . sold the premises, and by successive conveyances they have come to be held in severalty by a number of persons, not parties to the action, but served with notice of this motion. The mortgaged premises are now divided into eight city lots. The 128 feet in which Frances E., Charles ‘I)., and Mary A. had an interest, take up five of these lots and a part of another. All of these eight lots have been built upon, at an expense, in the aggregate, of over $30,000, This building was commenced in the spring of 1863, and continued about a year. And partly from these improvements, and partly from the prosperity of the city, the lots have greatly increased in value since the sale under the foreclosure. It is not claimed that the present owners of these lots had any actual knowledge of the alleged defect in their title, and on the other hand, it is averred that the moving parties, Charles D., Frances E., and Mary A. must have seen and known of the improvements as they were put upon these lots.
Caroline A. McMurray died March 10,1869, and the • moving parties, up to that time, were under the belief that they could not assert any rights which they had in the property until after her death. One other fact may be mentioned, whch is not, perhaps, very material. Before the foreclosure suit was commenced, the plaintiff, John Q-. McMurray, bought from the executrix of the mortgagor, (she having a power to sell,) the 52 feet, part of the mortgaged premises, in which the moving parties have no interest. He did not put the deed on record until 1870, and has proceeded in the foreclosure without regard
There is some conflict of testimony whether the lots did or did not sell for their full value; and some question whether, as would seem from the deed, they were sold in one parcel or in several. But these are matters which cannot come up on this motion. "Yet I may say, in passing, that from this unrecorded purchase of the 52 feet; from the' want of the proper order of reference to take proof of the facts and to examine the plaintiff as to the payments; from the selling of the property in one parcel; from the payment of the surplus of $2524.62 to the executrix of the mortgagor and not to the devisees, (some of whom are these moving parties;) from the repayment of that surplus by the executrix to the plaintiff, I am led to think that the interests of these moving parties actually suffered by the want of a guardian ad litem.
The questions to be settled here are:
1st. Is the want of a guardian ad litem a mere irregularity, or does it render the judgment erroneous or void?
2d. Is the remedy asked on this motion the proper relief?
3d. Is the motion made in time ?
There is a defect in the judgment, not referred to in the motion, but apparent on examination of the roll. The amended summons and complaint were not served on Frances E. or Charles D. How it is said, in the ease of The People v. Woods, (2 Sandf. 653,) that a judgment thus obtained is irregular, and must be set aside. It by no means follows, says Judge Sandford, because the defendant did not defend the original complaint, that he was not desirous to answer the complaint amended. The Code provides, (§ 146,) that if the complaint be amended, a copy must be served on the defendant, and the right to answer is a substantial right. (Low v. Graydon, 14 Abb. 444.) The neglect to serve on these two defendants was, at the least, a great irregularity. But too much time has elapsed,
I proceed to examine the question as to the want of a guardian ad litem. And here it should be observed that the position of an infant defendant is different from that of an infant plaintiff. There are several cases in which an adult defendant has sought to set aside proceedings on account of neglect in the infant plaintiff to procure the appointment of a guardian ad litem. Such are the cases of Rutter v. Puckhofer, (9 Bosw). 638;) Fellows v. Niver, (18 Wend. 563;) Parks v. Parks, (19 Abb. 161,) cited by the counsel opposing this motion. But these cases do" not touch the point involved here. They are cases in which the defendant, by pleading to the merits, had waived the defect in the plaintiff’s proceedings. This is pointed out in Fairweather v. Satterly, (7 Rob. 546.) The infant plaintiff comes voluntarily into court. If he comes irregularly the defendant should object promptly; by pleading in bar under the old practice, or answering generally, under the present, the defendant omits to object, and waives the defect. But an infant defendant is differently situated. He is brought into court without his consent, and the plaintiff claims some relief against him. He must defend his rights, or by his silence admit the plaintiff’s claim. He cannot appoint an attorney, to appear for him. Indeed, he may' be an infant, in the ordinary meaning of the word, and incapable of acting. ■ Therefore it is that the law has provided him a protector, and therefore the plaintiff if he would have relief against the infant, must see, at his peril,' that this protector is appointed. The Code (§ 115) says that when an infant is a party he must appear by guardian. This is no new provision; and the old authorities will therefore shed light on the effect of disregarding it. In Mockey v. Grey, (2 John. 192,) if was held to be error for an infant to appear by attorney; and the same doctrine is held in Alderman v. Tirrell, (8 id. 418.) In Bliss v. Rice,
It will thus be seen that by a uniform series of decisions under the former practice, judgments against infants were set aside, reversed or recalled for error in fact, on the ground that no guardian ad litem had been appointed. The remedy in the Supreme Court was by writ of error in fact. That has been abolished by the Code; but we shall find the same general principles enforced in other ways. The first case is that of Kellogg v. Klock, (2 Code R. 28,) where a judgment against an infant was set aside for the want of a guardian ad litem; the infant’s counsel arguing that, as the writ of error was abolished, and as an appeal did not lie from a judgment by default, a motion to set aside the judgment was proper. With which opinion the court seem to have concurred. In the case of Boylen v. McAvoy, (29 How. 278,) the plaintiff had a verdict against the defendant, who had appeared by attorney, but who, at the time of the trial, was four months under twenty-one years old. Judge Johnson says of the appearance of an infant by attorney, that “it was an error of fact for. which a judgment would be reversed or set aside. It was never curable by the statute of jeofails, and cannot bé obviated in this
It was strongly urged in opposition to this present motion, that this defect was a mere irregularity. The question as' to what defects are .mere irregularities was discussed in Clapp v. Graves, (26 N. Y. 418,) in which the court quote with approval the language of Justice Coleridge, in Holmes v. Russell, (9 Dowl. 487:) “ It is difficult, sometimes, to distinguish between an irregularity and a nullity; but I think the safest rule to determine what is an irregularity, and what is a nullity, is to see whether the party can waive the objection ; if .he can waive it, it'amounts to an irregularity;
From this review of the cases there can be no doubt that it is not a mere irregularity to take a judgment against
It remains then to consider whether the moving parties have made their motion within the proper time. I have already said that the defect complained of is not an irregularity ; so that the provision of the Eevised Statutes limiting the time to one year does not apply. (2 R. S., marg. p. 359, § 3.) Flor does section 174 of the Code touch this case. And for the reason that this is not a mere irregularity, the parties are not bound to move at the earliest possible opportunity. Still there should be some limitation. The moving parties severally came of age July 5th, 1861, October 31st, 1863, and March 14th, 1866. They seem.to have • thought that they could not proceed to enforce their rights until the death of Caroline A. McMurray, on the 10th of March, 1869. But this was a mistake. They could severally have moved as soon as they came of age, and they have, therefore, delayed respectively about nine, seven and four years. Innocent parties ought not to suffer from this mistake. I regret that there is not, as there should be, some statutory limitation to the right to make such a motion. It would be intolerable that it should be allowed at any unlimited time after the judgment, even on showing the fullest excuse for delay. For in the course of time rights of new parties arise which ought not to be disturbed. And it is very objectionable that the time within which such a motion may be made should depend on judicial discretion. The feelings of judges vary. This variance may be endured in matters addressed to discretion ; but it is very bad in matters of strict right. In the present case, I do not think that the ignorance of their rights, stated by these moving parties, is such a complete excuse for delay, that they may make their motion whenever they learn what their rights are. They are bound to know their legal rights; according to the old maxim that ignorance of the. law excuses no one.
Under the old practice, a writ of error (including the writ in the nature of a writ coram nobis) must have been brought within two years. If the party against whom the judgment was recovered were an infant, he might bring the writ within two years after coming of age. That time was liberal, and although I am not aware that, by any existing provisions, that limitation is legally applicable to this motion, still I do not think I shall be much astray if I follow the wisdom of former legislation. If these moving parties had sought their relief before the Code, they would have been strictly limited to the two years after they severally came of age. This limitation would have been entirely irrespective on the one hand of their knowledge or ignorance, and on the other of the acts of parties claiming under the judgment, (although by this remark I do not say how the reversal' of a judgment would affect a sale under it. Holden v. Sackett, 12 Abb. 473.)
I shall hold, therefore, both by analogy to the old writ of error, and also as my conclusion on the circumstances of this case, that the moving parties have not made their motion within such time as entitles them to the relief asked; and I shall deny the motion. They claim that the judgment is void. If they are correct in this they may perhaps enforce their rights by ejectment, or by an action to redeem. The denial of this motion, therefore, will be without prejudice to any action of ejectment, or to redeem the' mortgage, or of any other action which these parties might otherwise lawfully bring. Ten dollars, costs of opposing the motion, to be allowed to each of the several attorneys or firms who appeared.
Learned, Justice.]