John H. White, Respondent, v. James E. Coulter et al., Appellants

John H. White, Respondent, v. James E. Coulter et al., Appellants. (Argued November 10, 1874; decided November 24, 1874.) A person against whom a judgment hy default, regular on its face, has been taken, but who was not, in fact, served with the summons, has a legal right to have the judgment vacated; and an order denying that right is appealable to this court. It is not, however, every decision of the court below, on a motion where the regularity of the proceedings upon which a judgment founded is involved, which is reviewable here. Irregularities may have been waived or cured by the laches of the party complaining; and whether or not they have been thus obviated, is a question not only involving the discretion of the court below, hut may involve the determination of controverted facts; in which case, the decision below is not reviewable. An action for the foreclosure of a mortgage was noticed for trial at a regular Special Term; both parties appeared, and their attorneys consented to try it at an adjourned Special Term, where the trial was had without objection. Held, that this was a waiver of any objection to the regularity of the adjourned term. This was an appeal from an order of General Term, affirming an order of Special Term, denying a motion on the part of defendants to set aside the judgment of foreclosure herein, a sale of the mortgaged premises, and an execution for a deficiency. The defendant James E. Coulter appeared and defended. Judgment was taken by' default as against the defendant Amelia A. Coulter; atildavit of service of summons upon her was included in the judgment roll; but among the motion papers was the affidavit of the person who swore to the service, in which he swears that he made a mistake in the identity of the person served, and other affidavits showed that the service was in fact made upon another person. Held, that Mrs. Coulter, had the right to have the judgment vacated as to her, and as to her the motion should have been granted. The cause was noticed for trial at the regular July Special Term for 1872, in Saratoga county; both parties appeared by their attorneys; and, at the suggestion by the justice holding the term, of some disqualification on his part, the attorneys consented to try it at an adjourned Special Term, then being held, before another justice; and the trial was there proceeded with without objection. Defendants on the motion questioned the regularity of the adjourned term. Held, if any irregularity existed it was waived. It was also objected that the judgment was entered within four days after the decision, that the proof of filing of lis fen-dens was defective, and that the appointment of the referee to sell was defective. Held, that these were obviated by statements in the opposing affidavits that the attorney for the defendant James E. Coulter consented to the entry of judgment and to its form, and approved of the referee; and although these facts were controverted, the question could not be reviewed here; also, that as it appeared that the report of sale was confirmed by consent of defendants’ attorney, expensive improvements put on by the plaintiff who purchased, and that he had sold to another party ; also, that an action in the nature of a creditor’s bill had been commenced against Coulter in which he answered, admitting the sale which was not until eight months after entry of judgment ; that there were such laehes that the court below might thereon have denied the motion. The court laid down the general rule as above stated. The execution for the deficiency was objected to as defective. Instead of being-directed to the sheriff of Saratoga county it was, by evident clerical error, directed thus: “ To the sheriff of the county of county.” It recited however the docketing of the judgment in Saratoga county, and directed the sheriff!, if sufficient personal property could not bé found, to satisfy the judgment out of the real property “ in your county belonging to the said judgment debtor, on the day said judgment was docketed in your county.” It was indorsed also, “ Execution to Saratoga county,” and delivered to the sheriff of that county. Held, that there was sufficient to show to what sheriff it was intended to be directed, and, that after it had been executed and returned it was too late to move to set it aside. The sale was sought to be set aside upon the ground that the property did not bring- what it was worth. Held, that this was no ground for the interference of this court. Amasa J. Parker for the appellants. Esek Cowen for the respondent. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for reversal of order as to the defendant Amelia A. Coulter, and that judgment and all subsequent proceedings, as to her, be set aside, and for affirmance of order as to the defendant James E. Coulter. All concur. Ordered accordingly.