Cram v. Bradford

Reference.—Ron-Answering Defendant.—Issues. An order which directs a reference in a case in which a reference is not authorized by law, is an appealable order. As against a non-answering defendant in foreclosure, it is irregular to combine in one reference the inquiry as to the amount due, with the trial of issues between the plaintiff and other defendants, and to enter judgment as of course upon the report, without application to the court for judgment against the non-answering defendant. In a suit for the foreclosure of a mortgage, against several defendants, one of them appeared but failed to answer, while the others joined issue. The cause being before the court in its order on the calendar, upon notice of application for relief as against the non-answering defendant, but there being no one in attendance on his behalf, and upon notice of trial as against the others, an order of reference of “ the matter in controversy” was made. The referee proceeded to report not only upon the “ issue” in the cause, but also upon the plaintiff’s right to relief as against the non-answering defendant; and upon the report the plaintiff entered judgment as of course, for foreclosure and sale, and against the non-answering defendant for any deficiency. That defendant moved to set aside the judgment for irregularity. Held, 1. That the reference was regular as to the defendants who joined issue. 2. That it was irregular as against the defendant who did not answer, (there being no issue between him and plaintiff,) to direct any other reference than one to ascertain and report the amount due for the information of the court. 3. That the defect might be cured after judgment and sale by a reference to compute the amount due, the judgment to stand until the coming in of the report, and then to be modified conformably thereto.

Appeal from an order of the special term denying a motion to set aside a judginent for irregularity. This action was brought by Henry A. Cram against Hezekiah Bradford, Horatio Allen, George T. Allen, Thomas 0. Cutler, and others. Judgment of foreclosure and sale having been entered, a motion was made by H. Bogert, Esq., attorney of the defendant Bradford (having been substituted as such, after judgment, in place of the attorneys previously employed) on behalf of Bradford, first, to set aside the judgment, as against him, for irregularity; and second, that even if the judgment were held regular, it might be opened, and he be permitted to defend on the merits. The motion was denied in both branches. The defendant Bradford now appealed from the order, on the ground that the judgment was irregular. The proceedings, so far as they appeared from the judgment-roll alone, and so far as the irregularity was concerned, were as follows:— The complaint was for the foreclosure of a mortgage for about $21,000. The defendant Bradford was original mortgagor and bondsman. The defendants Allens, Thomas O. Cutler, and others, were joined as encumbrancers. The defendant Bradford appeared, but did not answer. The Allens answered, contesting the priority of plaintiff’s mortgage. This was the only issue joined. The defendant Cutler did not answer. On May 4, 1855, without, so far as appeared from the judgment-roll, any notice to Bradford, an order was made on motion, on behalf of the Allens, that the cause be referred to a sole referee, “ to hear and determine the same.” On the 7th of May notice was served by plaintiff’s attorney on the attorneys for the respective defendants, of a meeting before th e referee. The referee reported on the issue joined by the Allens, and proceeded also to compute the amount due on the mortgage from defendant Bradford, and reported that the plaintiff was entitled, as against Bradford, to judgment of foreclosure and sale and personal judgment for any deficiency. On the coming in of the report, the plaintiff’s attorney served on the respective attorneys for the defendants, notice of a motion for an order confirming this report, and for judgment thereon pursuant to it, and for the relief demanded in the complaint. This motion was not granted, but on the 19th of November an order was made simply that plaintiff have leave to proceed to enter judgment. The plaintiff thereon proceeded to enter as a matter of course, and upon the report of the referee, a judgment of foreclosure and sale with personal judgment against the defendant Bradford, for any deficiency. On the hearing of the motion at the special term, the following additional facts, not disclosed by the judgment-roll, were shown by affidavits read to oppose the motion. That a notice was duly served on the attorneys of Bradford, that the issue of fact would be brought on for trial, and application made to the court for the relief demanded in the complaint. That when the cause came on, pursuant to the notice, no one appeared for Bradford, but the counsel for the Allens moved for a reference; which was opposed by plaintiff, but granted by the court. That the defendant Bradford also failed to appear pursuant to the notice of application for judgment ou the report. That counsel for the Allens appeared and opposed the motion, and the court held that the plaintiff must enter his judgment on the report, and that the court had no power to make any order of confirmation. That the plaintiff objected that the fact that Bradford had put in no answer, might render the order of the court necessary. That the court held that his non-appearance pursuant to the notice of the application, rendered it unnecessary. That the court gave plaintiff leave to withdraw his application, but he did not withdraw it. In addition to the papers showing these facts, there were read, on the part of the defendant Bradford, an affidavit of merits, and affidavits setting forth at length the facts out of which his proposed defence arose ; and he asked that if the judgment were vacated he might be permitted to answer. On the part of the plaintiff, affidavits were read to rebut that defence. We give, however, only so much of the argument and opinion of the court as relates to the question of irregularity. On the argument of the appeal a preliminary objection was taken by the respondent, that an order of reference was not appealable, it being discretionary with the court to grant a reference or refuse it. The objection was reserved for consideration, and the argument upon the merits of the appeal was directed to proceed.