30 N.Y.S. 52 | N.Y. Sup. Ct. | 1894
This case on appeal contains none of the evidence, and there are no exceptions to the findings of fact or conclusions of law of the learned trial justice on the trial, and the appellants now seek to reverse the judgment solely upon the alleged ground that the conclusions of law of the learned trial judge are not supported by the facts found by him. The appeal is by Charles A. Kenworthy and Emma J. Kenworthy, individually, and as executrix and trustee under the will of Charles W. ICenworthy, deceased. The judgment in this case as to Emma J. Kenworthy, both as an individual and in her representative capacity, was entered by default, she not having appeared or answered in the action. We do not see how she can question this judgment taken against her by default. The right of a party to appeal is provided for in section 1294 of the Code of Civil Procedure. That section provides as follows: “A party aggrieved may appeal in a case prescribed in this chapter, except when the judgment or order of which he complains was rendered or made upon his default.” This exception, by clear implication, deprives a party in default of an appeal. The only remedy left for a party in default, who is aggrieved by a judgment or order, is to open the default, and thus take issue upon the law or facts, and upon such issue have a determination in the trial court, where an appeal from such determination can be taken. The right of a party to be heard
PUTNAM, J., concurs. HERRICK, J., concurs in result.