Seymour C. Armstrong, Respondent, v. Mary A. Loveland and Hollis Loveland, Appellants, Impleaded with Others

Seymour C. Armstrong, Respondent, v. Mary A. Loveland and Hollis Loveland, Appellants, Impleaded with Others. Adjournment of a trial to a place where no justice resides or has chambers — a written stipulation required—lack of jurisdiction is not an irregularity. Where a case pending before the Supreme Court is brought on for trial in the county courthouse, an adjournment of the trial of the case to another place in the same county, in which no justice of the Supreme Court resides or has his chambers,-is unauthorized, unless the parties execute the written stipulation required by section 37 of the Code of Civil Procedure; the oral consent of the parties granted in open court will not take the place of the written stipulution required by said section. If, at the time and place to which the trial of the case was adjourned, one of the parties fails to appear, and the court assumes to render judgment against him by default, such judgment is without jurisdiction and the judgment debtor .is entitled to have it vacated upon motion. The lack of jurisdiction is not an irregularity which must be specified in the . notice of motion to vacate the judgment; it may be urged for the first time before the Appellate Division on an appeal from an order refusing to vacate the judgment. Appeal by the defendants, Mary A. Loveland and another, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Warren on the 2d day of May, 1904, denying the said defendants’ motion to vacate a judgment theretofore entered in the above-entitled action. The action is brought for the foreclosure of a mortgage. The defendants are the widow and son of the mortgagor who died intestate. Notice of no personal claim was served with the summons. The answer is to the effect that on or about May 1, 1898, the plaintiff as mortgagee took possession of the premises, and has since retained possession and enjoyed the use and profits thereof. The answer sets up the value of this use and occupation as a counterclaim, and was served by mail on September 25, 1903. A reply was served by plaintiff in which the plaintiff seeks to avoid the counterclaim with new matter, in that the plaintiff had “ paid taxes, built fences, performed work, labor and services, paid, laid out and expended moneys, and made permanent improvements thereon by clearing up the land and getting it in condition for cultivation, and cultivating the same, to the amount, value and extent of as much or more than the value of the use thereof.” This reply was served by mail on October 5, 1903. Upon October 17, 1903, the defendants demurred to such parts of the reply as set up an avoidance to the counterclaim on the ground that it is insufficient in law upon the face thereof, and in the demurrer was this provision: “ This demurrer does not include the taxes mentioned in said reply by way of counterclaim, to which said taxes the defendants do not demur.” Prior to October 17, 1903, the date of the service of the demurrer, and upon October tenth, a notice of trial was served by the plaintiff for the October term of court in Warren county. At the call of the calendar on the opening day of the October term a motion was made by the defendants to strike this case from the calendar of that term. The motion was made upon the ground that there had been an issue of law raised by the demurrer which must first be disposed of before the issue of fact could be tried, and that said issue of law was formed within fourteen days from the beginning of the term. This motion was denied, and from the order entered denying this motion the defendants appealed to this court, which affirmed the order, without opinion and without costs. (92 App. Div. 616.) After the denial of this motion, at the October term in Warren county, upon agreement of counsel in open court, as it is claimed, the trial of the action was adjourned to Glens Falls, to which place the court was adjourned. Thereafter, without the appearance of the defendants, the plaintiff took judgment at the adjourned term at Glens Falls for the relief demanded in the complaint. Subsequently, and upon the 23d day of April, 1904, the defendants, appellants, made an application on notice to have this judgment vacated, which application was denied, and from the order entered thereupon these defendants appeal. Frank F. Loughran, for the appellants. Adam Armstrong, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: Upon the appeal from the order refusing to postpone the trial in this action this court affirmed the order upon the ground that the claimed demurrer was not authorized, as it was neither a demurrer to the reply nor to a separate traverse to or avoidance of a counterclaim contained in the reply. As it was not a demurrer authorized by section 493 of the Code of Civil Procedure, and was, therefore, improperly in the case, it raised no issue of law which must be decided before the trial of the issue of fact, and the case was properly on the calendar for trial. A further question is now raised upon this motion which presents greater difficulty. By section 238 of the Code of Civil Procedure the place appointed for the holding of Special Terms of the Supreme Court at which issues of fact are triable must be that designated by the statute for holding the County Court. By section 239 it is provided that a case triable by the court, without a jury, which is upon the calendar before the adjournment of a Special Term of the Supreme Court may, by the consent of counsel, be adjourned to a future day, and to the chambers of any justice of the court residing within the judicial district, by an entry in the minutes. The county court house in the county of Warren is situated in the village of Lake George in said county.- From this place the term of court was adjourned to the village of Glens Falls in said county. At Glens Falls no justice of the Supreme Court resided or had chambers. The adjournment, therefore, of the trial of this case from the village of Lake George to the village of Glens Falls was unauthorized by section 239 of the Code of Civil Procedure. By section 37 of said Code it is provided as follows: “ The parties to an action * * * pending in a court of record may, with the consent of the judge who is to try or hear it without a jury, stipulate in writing that it shall be tried or heard and determined elsewhere than at the court-house. The stipulation must specify the place of trial or hearing, and must be filed in the office of the clerk, and the trial or hearing must be brought upon the usual notice, unless otherwise provided in the stipulation.” In the absence of the stipulation provided for in this section we are unable to find any authority for the court at this adjourned term in the village of Glens Falls to try this case in the absence of defendants. At this adjourned term the defendants made default. The want of jurisdiction was not cured by their oral consent. Oral consent in open court in the village of Lake George could not take the place of the written consent required by section 37 of the Code of Civil Procedure to be made and filed as a condition precedent to the jurisdiction of the court to hear the case elsewhere than at the county courthouse, and to take the default of the party failing to appeal’. This defect of want of jurisdiction is not an irregularity which must be specified in the notice of motion, nor is it waived by the failure to raise the question in the court below. The judgment is void as unauthorized. The order denying defendants’ motion must be reversed, with costs, and the motion to vacate granted, with ten dollars costs of motion. All concurred. Order reversed, with ten dollars costs and disbursements, and motion to vacate granted, with ten dollars costs.