Howatt v. Howatt

Smith, P. J.: A short chronological statement of the proceedings in this case will serve to clarify the questions which have arisen. The action is brought for divorce on statutory grounds. Issue was joined by the answer of defendant upon the 30th day of January, 1912. Thereafter an order was granted requiring the defendant to pay plaintiff ten dollars a week alimony from [30] the 1st day of April, 1912. Upon the sixth day of May, defendant failing to appear, after notice of trial duly served, an inquest was taken by the plaintiff. Proof was made of the fact of adultery and findings of fact and of law were signed by the trial judge, and an interlocutory judgment was directed and was entered in the Ulster county clerk’s office on the 1st day of June, 1912. Thereafter and upon the twenty-third day of July an order to show cause was obtained by the defendant why the interlocutory judgment should not be vacated, and in that order a stay was provided. The hearing upon the order to show cause was not had until the fourteenth day of September, at which time an order was made opening the default and vacating the judgment upon condition that the defendant in twenty days pay the back alimony and ten dollars costs of the motion. The order provided that in case of failure to pay such amounts the motion should be deemed denied. This order was entered upon the third day of October, and upon the fourth day of October a copy was served upon the defendant. Upon the said fourth day of October the plaintiff served a notice of trial for a term of the Supreme Court sitting in Ulster county, which began upon the twenty-first day of October. At the opening of court - the plaintiff not responding the case was stricken from the calendar. Thereafter a motion was made by the plaintiff to restore the same to the calendar, which motion was denied by the justice presiding. Upon the application to restore the case to the calendar it was stated in the affidavit of the plaintiff that the defendant had • not complied with the condition of the order opening the default and had not paid the costs of the back alimony. It will be borne in mind that the twenty days within which the defendant was allowed to comply with the condition of the order did not expire until the twenty-fourth day of October. Meantime and upon the eighteenth day of October, the corespondent, Martha A. Baeder, served a notice of appearance and demanded a copy of the complaint. This copy of the complaint was served upon the twenty-first day of October upon the corespondent, and her answer was served upon the plaintiff’s attorney upon the ninth day of November. Upon the first day of November the defendant appealed from the order vacat [31] ing the judgment or from the conditions imposed in such order, but failed to serve his printed papers, and a motion was made to the Appellate Division to dismiss the appeal. Thereafter and upon the 7th day of January, 1913, by consent of both parties, the appeal was dismissed in the Appellate Division. Upon the twentieth day of January the plaintiff made application for final judgment, reciting the history of the case substantially as is hereinbefore set forth. This was opposed both by the defendant and by the corespondent. The motion was argued upon the eighth day of February, and final judgment was granted and entered upon the seventeenth day of February. In that final judgment it was stated that the plaintiff’s delay in applying therefor had been sufficiently excused. It is from this final judgment that the appeal is taken both by the defendant and the corespondent. First, considering the appeal of the defendant Howatt, it is apparent that the interlocutory judgment is not reviewable upon this appeal. First, because it is not specified in the notice of appeal. (Code Civ. Proc. § 1301.) Again, because it was entered by default, the defendant not appearing before the trial court to oppose the application. The appeal then simply brings in question the plaintiff’s practice and right to final judgment after it had been directed by the interlocutory judgment. It is first contended that the delay beyond the three months and thirty days had not been excused. From the statement of the proceedings in the case, however, it would appear to have been abundantly excused. It is claimed, however, that section 1774 of the Code of Civil Procedure requires a special order excusing the delay. While the practice would have been more regular to have entered an order excusing the delay and directing a final judgment, the practice adopted of entering the judgment under the signature of the trial judge is the practice very commonly adopted, and the practice which to my mind answers every requirement of the Code. But were it otherwise the court would now direct nunc pro tunc an interlocutory order to be entered in order to sustain this judgment. It is contended on behalf of the defendant that the interlocutory judgment was once opened and the plaintiff is not in a position to move for final judgment until an order of the court [32] had been made revoking the opening of that judgment by reason of the failure of the plaintiff to comply with the conditions therein named. But the order itself provided that upon the failure to comply with such conditions the application to open the judgment should be deemed denied. Moreover, the granting of the final judgment in this case upon papers showing these facts may itself be deemed a direction of the court that the interlocutory judgment be reinstated so far as may be necessary to authorize the entry of the final judgment. The main contention of the defendant, however, is that the conditions in the order have been waived. A number of cases have been cited to the effect that a stay of proceedings for nonpayment of costs is waived by service of a notice of trial. In the case at bar, however, this was not simply a stay of proceedings. A favor had been granted upon the compliance with certain conditions. The court will be slow to hold that the performance of those conditions have been waived simply by the service of a notice of trial, so that if the conditions were performed and the interlocutory judgment vacated the plaintiff might have a speedy determination of the issue. It would be unjust to the plaintiff to require her to lose the benefit of the October term of a country circuit in order to save her rights to the performance of the conditions of the order opening the. interlocutory judgment. In fact the defendant himself did not so interpret the order, because upon the first of November he appealed from that part of the order imposing those, conditions, which appeal would have been wholly unnecessary if the conditions had been waived by the plaintiff by any proceedings that he had taken in the action. The Special Term found no evidence of any intention on the part of the plaintiff to waive the conditions imposed upon the opening of the interlocutory judgment, and we are of the opinion that his conclusion was justified upon all the facts of the case. The defendant has shown no reason why the final judgment was not properly granted. ' 'As to the corespondent, it may well be doubted whether the right given her under section 1757 of the Code of Civil Procedure survives the. entry of interlocutory judgment. After the entry of the interlocutory judgment against the original [33] defendant the court would have undoubted power upon his application to open the judgment and to allow him to defend, and such orders have frequently been made. In the case at bar, however, no such application was made. This corespondent asserts the right to come in even after the entry of the interlocutory judgment and to have the issues reopened and retried, in order that she may assert her defense as far as her-complicity is charged. But this position is sustained neither by reason nor by authority. The rights of a corespondent appearing at a later stage of the action have been fully considered in the case of Boller v. Boller (111 App. Div. 240). It is there held that a corespondent comes into the action as she finds it and, without special application, cannot have. a retrial of issues already determined. The cases of Dicks v. Dicks (155 App. Div. 418) and Shaw v. Shaw (Id. 252) were both cases decided upon special application by the corespondent, and in neither one of those cases was the case of Boller v. Boller (supra) questioned. We have considered the other questions raised by the appellants and find no reason for reversing the final judgment entered herein. The judgment should, therefore, be affirmed, with one bill of costs against the defendant Howatt. Judgment unanimously affirmed, with one bill of costs against the defendant Howatt.