Foote v. . Lathrop

41 N.Y. 358, 1869 N.Y. LEXIS 250

• Court: New York Court of Appeals
• Decided: December 21, 1869
• Status: Published

Opinion

Grover, J.

The third subdivision of section 11 of the Code, authorizes an appeal to this court, from a final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment, &e. The order appealed from in the present case, was made upon a summary application to the court in an action, after final judgment therein, and the order is final. So far, it comes within the above provision, authorizing an appeal to and review by this court. It remains to consider whether it affected a substantial right within the meaning of that term as used in the Code. It is manifest that it was not the design of the Code to make every final order made in a special proceeding, or upon a summary application to the court in an action after judgment, appealable to this court. Had such been the intention the act would have so expressed it without any limitation. But the right to appeal from such orders is limited to those only affecting a substantial right. The inquiry then is, what does this import ? Clearly, not that it must affect a right of substantial value to the party. If this was the construction, the limitation of the right of appeal would be extremely vague, and dependent upon the view entertained by the court as to the importance of the right affected. The design of giving the appeal, was to enable this court to correct any legal error that the court below might have committed in making the order; not to substitute the discretion of this in place of that court, when discretion was to be exercised. Hence it has been uniformly held by this court, that where the application was addressed to the discretion of the court, its order was not reviewable here. Hence it follows, that by substantial right, is to be understood such rights only as are to be determined as pure questions of law; such only as can be demanded as the strict legal right of the party. This view, applied to the present case, requires the appellant to show that she had an absolute right to have the judgment set aside as to her, upon motion, for the reason that the summons in the action was not served upon her, although an attorney of the court had regularly appeared for, and the judgment was in all respects apparently regular and valid, upon her showing that such attorney was licit authorized by her to appear for her in the action. That she had no such right upon motion to the court, is too clear to require description. That it was an application to the discretion of the court, to be exercised in view of all the facts and circumstances attending the entire case, is manifest. When a judgment hag once been regularly entered, no party has a legal right to demand, upon motion to the court, that it be set aside. But it may be said that this is not a valid judgment as to Mrs. Lathrop, she never having been served with process, and never having authorized the attorney to appear for her. Should this, for the sake of the argument, be granted, I do no gee how it would aid the appellant upon this appeal. It would still rest in the discretion of the court, whether to entertain a motion to vacate the judgment, or leave her to show the judgment void, as to her, whenever interposed as an obstacle to her pursuit of her right to the land. The order would not, even upon this hypothesis. be review able in this court. This disposes of the case. The order .is not appealable to this court, and the appeal must be dismissed. I will simply add, that I am not prepared to assent to the proposition, that the judgment is not binding upon the appellant. See opinion of Woodruff, J., in Hamilton v. Wright (37 N. Y., 502), and cases cited. But as the point is not necessarily involved in the present case, I shall not discuss or pass upon it.

All the judges concurring, appeal dismissed.