Frederick Fawcett, Respondent, v. Bennet H. Vary et al., Appellants

Frederick Fawcett, Respondent, v. Bennet H. Vary et al., Appellants. (Argued January 19, 1875; decided January 26, 1875.) Where the affidavit that no answer or demurrer has been served, filed with the clerk for the purpose of perfecting a judgment by default, is properly sworn to before a proper officer who neglects to sign the jurat, and the omission is not discovered until after the entry of judgment, the court has power, and it is within its discretion, to permit the officer to sign, nuncpro tunc (Code, § 174); and the exercise of this discretion is not reviewable here. Appeal from order of the General Term of the Supreme Court in the third judicial department, affirming an order of Special Term allowing an amendment, nunc pro tunc, of the judgment roll herein by adding the signature of a notary public to the jurat to an affidavit therein. The judgment was by default. It appeared, by the moving papers, that the affidavit that the time for answering had expired and that no answer or demurrer had been served, was signed and duly sworn to by one of plaintiff’s attorneys before a notary public who accidentally omitted to sign his name to the jurat, and that the omission was not discovered until after entry of judgment. The county clerk entered the judgment without calling attention thereto. The Special Term ordered “that the record of judgment in this action be, and the same is hereby, amended, nunc pro tunc, as of the date of the filing thereof, that is to say, June 12th, 1873, by adding to the jurat of the affidavit for default the signature of C. McO. Myers, notary public, the notary public before whom the said oath was taken.” Nathaniel C. Moak for the appellants. The court had no authority to grant the motion to amend, except to allow the affidavit to be made to be filed as of the date of the order. (Code, §246; Chappell v. Chappell, 12 N. Y., 222; Harris v. Warren, 1 How. Pr., 139; Hallett v. Righters, 13 id., 43; Ogden v. Lee, 3 id., 153; Johnson v. Budge, 1 C. & M., 647; Boylen v. McAvoy, 29 How., 278; In re Livingston, 2 Abb. [N. S.], 24-26 ; Bangs v. McIntosh, 23 Barb., 591; Doughty v. Hofe, 3 Den., 599 ; People v. Adams, 6 Hill, 236 ; Moore v. Westervelt, 14 How., 279 ; 6 Duer, 684; Butler v. Lewi, 10 Wend., 541; 15 id., 510.) The judgment having been entered without authority, the court cannot' make it valid as of the time it was entered. (Butler v. Lewis, 10 Wend., 542; 15 id., 110; Simonson v. Blake, 20 How. Pr., 484; Bucann v. Lunner, 2 Barb. Ch., 177; Moore v. Westervelt, 14 How., 279.) The power is not conferred by section 173 of the Code: (Clickman v. Clickman, 1 Comst., 611.) Geo. Morris for the respondent. The affidavit of default being actually signed and sworn to and dated, the omission of the notary's signature was not jurisdictional. (Livingston v. Chatham, 2 J. R., 479 ; Chase v. Edwards, 2 Wend., 283; U. Furnace Co. v. Shepherd, 2 Hill, 414; Catlin v. Billings, 16 N. Y., 622, 623; Soule v. Chase, 1 Abb., [N. S.], 48 ; Barker v. Cook, 25 How., 190 ; Goelet v. Spofford, 55 N. Y., 647.) .If it was irregular for the clerk to enter the judgment without the proper affidavit of default, it is an irregularity which the court could cure on motion. (Code, § 174; 2 C. & H. Notes, 978, 989; 13 How., 358 ; Waring v. Waring, 7 Abb., 472; Lewis v. Jones, 13 id., 427; Kissam v. Marshall, 10 id., 424; Daly v. Matthews, 20 How., 567; Close v. Gillispie, 3 J. R., 526; Lawton v. Riel, 34 How., 465, 467; S. C., 51 Barb., 30; F. L. and T. Co. v. Dickinson, 17 How., 478; Seaman v. Drake, 1 Cai., 9 ; Walsh v. Kelly, 27 How., 359 ; 40 N. Y., 556; Hees v. Snell, 8 How., 187; Catlin v. Billings, 13 id., 514; Clickman v. Clickman, 1 Comst., 611; Dexter v. Hoover, 2 Cow., 226; Cutler v. Rathbone, 1 Hill, 204,, 206; Bunce v. Reed, 16 Barb., 347; Prindle v. Aldrich, 13 How., 468; Furman v. Walters, id., 350, 356.) The court had authority to order the affidavit to be filed nuna pro tunc. (3 Wait’s Pr., 704, § 4, et seq.) [MAJORITY — Grover, J.] Grover, J. This appeal must be dismissed with costs. The only question presented is, whether, when the affidavit,. showing that no answer or demurrer has been served by the defendant, filed with the clerk, was regularly sworn to before a proper officer, who through some oversight neglected to sign the jurat, which omission the attorney and clerk failed to discover until some time after the entry of judgment, the court has power to permit an amendment by directing the officer to sign nuno pro tuno as of the day the affidavit was actually sworn before him. If the court had the power, it was in its discretion to grant the amendment, the exercise of which is not reviewable by this court. Section 174 of the Code confers the power to grant the amendment. That, among other things, provides that whenever any proceeding taken by a party fails to conform in any respect to the provisions of the Code, the court may, in like manner and upon like terms, permit an amendment of such proceeding so as to make it conformable thereto. This clearly embraces the power to grant the amendment in question. But the court possessed the power to grant the amendment in question-prior to the Code. (Close v. Gillespey, 3 J. R., 526; Seaman v. Drake, 1 Caines, 9; Dexter v. Hoover, 2 Cow., 526; see also, Cutler v. Rathbone, 1 Hill, 204; Lawton v. Kiel, 51 Barb., 30.) All concur. Appeal dismissed.