Opinion
January, 1903.
Henry Kuntz and Edward A. Brown, for appellants.
James C. De La Mare, for respondent.
In the order and decision of the trial justice sustaining the demurrer it is recited that the attorney for the plaintiff appeared in support of the demurrer, and no one appeared in opposition thereto. An interlocutory judgment was thereupon entered, directing that in case the defendants do not within six days after service of a copy of the interlocutory judgment serve an amended answer and pay costs, then plaintiff may enter final judgment. The defendants failed to amend or pay costs, and final judgment was entered against them. The defendants have appealed from both the interlocutory and final judgments. The plaintiff contends that no appeal lies under these circumstances. Section 1294 of the Code of Civil Procedure provides: "A party aggrieved may appeal, in a case prescribed in this chapter, except where the judgment or order, of which he complains, was rendered or made upon his default." An order containing a recital that the motion is granted after hearing counsel for the moving party and no one appearing in opposition thereto, is granted on default, and no appeal can be taken therefrom. Matter of Peekamose Fishing Club, 5 A.D. 283. As no one appeared in opposition to the demurrer, the order upon which the interlocutory judgment was entered was made on default, and no appeal lies therefrom. The final judgment is dependent upon the interlocutory judgment. It was entered upon defendants' failure to comply with the terms imposed, as matter of course, without further motion. "The final judgment carries forward the adjudication of the interlocutory judgment and completes the full adjudication of the rights of the parties." Avery v. Woodin, 44 Hun, 266. And an appeal from a final judgment brings up for review the interlocutory judgment which determined the issue arising upon the demurrer. Kerr v. Dildine, 60 Hun, 315. The defendants, therefore, cannot appeal from the final judgment. In Kerr v. Dildine, 14 Civ. Pro. 176, an interlocutory judgment had been entered on the determination of an issue of law, joined by the defendant's demurrer to the complaint, and leave to answer granted on condition of the withdrawal of the demurrer and payment of costs. The query was raised whether failure to answer in such case constitutes a default within the meaning of the Code provision. The question was not there answered, as the case was decided on another point, and it is not necessary to decide it in the case at bar, as we consider the failure to appear in opposition to the demurrer the fatal default. In Kerr v. Dildine, 60 Hun, 315, the same appeal was again before the General Term of this court, but it appeared that the defendant duly argued his demurrer and appeared to oppose the entry of final judgment. The court said: "The defendant has not been in default at any stage of the action. * * * In the cases principally relied upon by the respondent, there was not only failure to answer but failure to oppose the application for judgment, so that in those cases judgment was, in fact, taken by default." The clear purpose of the Code provision is to insure compliance with the wise plan of our procedure, that argument on any given point of law or fact be first presented to a trial judge. To admit this appeal would open the door to many arguments before an appellate court, when the matter had never been contested in the court below. Judge Earl, in Flake v. Van Wagenen, 54 N.Y. 25, quoting Gelston v. Hoyt, 13 Johns. 561, says: "A party acts against good conscience if he will not come forward and disclose his reasons, when called upon by the proper tribunal, but reserves for himself another court * * *. The very theory and constitution of a court of appellate jurisdiction only is the correction of errors which a court below may have committed; and a court below cannot be said to have committed an error when their judgment was never called into exercise, and the points of law were never taken into consideration, but was abandoned by the acquiescence or default of the party who raised it." The failure to appear and oppose the demurrer constitutes a default within the meaning of section 1294 of the Code, because the reasons for overruling the demurrer were not presented to the court. The demurrer was not contested and therefore acquiesced in. In Flake v. Van Wagenen, 54 N.Y. 27, Judge Earl says: "However improper the evidence may be which one party gives at the circuit, and however erroneous the charge of the judge may be, the other party cannot, upon appeal, complain, unless, at the time he made the proper objection, and thus called for the exercise of the judgment of the judge, upon the matter complained of. In the absence of any objection he will be held to have acquiesced; and, for the same reason, if a party permits an order or judgment to be taken against him by default, when he has been notified to appear, and has thus had an opportunity to object, he will be deemed to have acquiesced; and afterward he can no more attack the same upon appeal than he could if he had expressly assented to the order of judgment."
The definition of default as a failure to appear and contest a point of law or fact by presentation of counter argument or proof has been applied in many cases. Where there has been no opposition to a referee's report or when there has been a stipulation that judgment be entered thereon, no appeal lies from such judgment. Boyd v. Bigelow, 14 How. Pr. 511. Mr. Justice Marvin, construing the right to appeal under an early statute, says: "This will not include judgments, orders or final determinations, upon default, or rendered or made upon stipulation. The General Term cannot be called upon to examine the case until it has been presented, contested and passed upon at a Special Term." Smith v. Velie, 60 N.Y. 106. But on the other hand, although no motion had been made to set aside the referee's report, it was held that an appeal lies, where the merits had been argued on a motion to confirm the report and for judgment thereon. Kellogg v. Clark, 23 Hun, 393. So also, no appeal lies from a judgment, entered upon an inquest, taken at the trial. Keller v. Feldman, 2 Misc. 179; Greenleaf v. Brooklyn, etc., R.R. Co., 37 Hun, 435. Where, on motion, duly noticed, an answer is stricken out as sham or on the ground that it is frivolous, and no one appeared in opposition to such motion, a judgment rendered thereon is by default and no appeal lies. Flake v. Van Wagenen, 54 N.Y. 25; Innes v. Purcell, 58 id. 388; Hoag v. Hatch, 16 Civ. Pro. 118. The proper remedy in the case is not to appeal but by application to the court for an order opening the default. Oliver v. French, 80 Hun, 175.
FREEDMAN, P.J., and GREENBAUM, J., concur.
Appeal dismissed, with costs.