38 N.Y. 172 | NY | 1868
This action was brought to foreclose the defendant's equity of redemption in mortgaged premises. On the 10th of February, 1863, a judgment was entered at Special Term, directing a sale of the premises for the satisfaction of the debt, with the costs and expenses of the action, and that the defendant pay any deficiency which might appear after the sale. In pursuance of the judgment, the premises were duly sold by the sheriff of Kings county, in which they were situated. The sheriff made his report of sale on the 25th of May, 1864, and stated therein that the deficiency amounted to $1,024.47. The report was filed in the office of the clerk of Kings county; an order was entered, confirming it on the 26th of May, 1864, and the deficiency docketed by the clerk on the 27th of May, 1864. Notice in writing, of the judgment, was served personally on the defendant on the 16th of February, 1863, and on his attorneys on the next day. A notice of appeal from the judgment was deposited by defendant, in the post-office in New York, on the 19th of March, 1863, addressed to the plaintiff's attorney at Brooklyn, and another addressed to the clerk of Kings county, Brooklyn. The notice of appeal was set aside by an order of the court at Special Term, on the ground that it was served too late upon the clerk; which order was afterward affirmed by the General Term.
No written notice of the order confirming the report of sale, and stating the deficiency, was given until the 23d of November, 1867, although the defendant had served, on the plaintiff's attorney, a notice of appeal from the said order, on the 23d day of November, 1867. *173
The defendant insists that the judgment entered on the 10th of February, 1863, was only interlocutory, and that the judgment did not become final until the entry of the order confirming the report of sale on the 27th of May, 1864; and, as he had received no written notice of this order until the 25th of November, 1867, his notice of appeal on the 23d was effectual.
The question, then, arising on that motion is, whether the judgment entered on the 10th of February, 1863, was interlocutory or final, or whether it became final only on the entry of the order confirming the report of sale.
As a general rule, undoubtedly, when a judgment or order directs a reference, although it provides for the decision of the main questions at issue, it is deemed interlocutory. But, I think, this can only be when there is something reserved for the court judicially to determine. In the present case, the court determined all that it was necessary to determine judicially, by the judgment of the 10th of February, 1863; there was nothing more for it to decide; what was left, was to be done by its ministerial officers. The sheriff sent in his report, which was filed, and an order was entered, as of course, confirming it. The docket of the deficiency by the clerk is merely a clerical act, in pursuance of the directions of the judgment entered on the 10th of February, 1863.
In Mills v. Hoag (7 Paige, 18), the chancellor says, "The usual decree in mortgage cases for the sale of property, and the distribution of the fund among the parties, and finally disposing of the question of costs, is a final decree, and is constantly enrolled as such; although the master's report of the sale and distribution may be excepted to if erroneous, and it may require a subsequent order of the court to dispose of the questions which may thus arise."
In Johnson v. Everett (9 Paige, 636), a decree was made by the vice-chancellor of the seventh circuit, declaring the rights of the parties, and directing an account in conformity therewith, but reserving the consequential directions, and the question of costs, until the coming in of the master's *174 report. The decree was entered on the 25th of January, 1842, and, on the 28th of the same month, a copy thereof was served on the solicitor of the defendant, whose appeal was not entered until some time in the following May. The only question, therefore, was, whether the decree was final as to the appellant, or was an interlocutory decree, from which they should have appealed within the fifteen days allowed by the statute for appealing from interlocutory orders and decrees of the vice-chancellor. The chancellor decided that the decree was interlocutory, on the ground that further directions and the question of costs were reserved until the coming in of the master's report. But he adds, if the decree, in addition to the reference to the master, to compute, etc., proceeds further, and gives the usual directions in such cases, that, upon the coming in and confirmation of the report of the master, the premises shall be sold, and that the master pay the amount due, out of the proceeds of sale, and directing the mortgagor to pay the deficiency, the decree is final, although the mortgagor may have the right to except to the master's report of the amount due.
The case before us is still stronger. The action of the sheriff was purely ministerial; no exceptions could have been taken to his proceedings, so that they could be reviewed judicially. His duty was merely to enforce the judgment, and to return a report of his action, which was to be filed with the clerk, without any further judicial intervention of the court. It may be proper to add, that the reasoning by which I have arrived at this result in no respect conflicts with the recent decision of this court inClark v. Brooks (2 Abb. N.S. 385). The judgment appealed from in that case was purely interlocutory; there were questions expressly reserved for the further adjudication of the court, — questions upon which the intervention of the judicial action of the Special or General Term was indispensable, before a final judgment could be entered.
The order should be affirmed with costs.
Judgment affirmed. *175
