Martine v. . Lowenstein

68 N.Y. 456, 1877 N.Y. LEXIS 745

• Court: New York Court of Appeals
• Decided: February 13, 1877
• Status: Published

Opinion

Earl, J.

Attorneys are a body of men licensed by the courts to appear for suitors therein. A party to any action or special proceeding pending in court may appear therein by attorney, at any stage of such action • or special proceeding, unless some statute or the order or process of the court requires him to appear in person. There is nothing in the nature of an appearance by an attorney which limits the right of such an appearance to a time prior to a judgment in an action, and we know of no statute and our attention has been called to no authority which imposes such a limitation.

A party defendant in an action may appear at any time before judgment or at any time afterward, so long as there is any proceeding in which he has any rights or interests to protect.

In an action to foreclose a mortgage, a defendant may have no defence, and hence he may permit the case to proceed to judgment without any appearance; and after judgment, if he should conclude that it was essential to the protection of his rights, he may appear by attorney, and require that he receive through him such notices as the law enitles him to.

Assuming in this case, that in order to entitle the defendants to the notice of filing the report of sale mentioned in Rule 39 of the Supreme Court, they must have given some notice of appearance by attorney, that court has held that there was sufficient notice of appearance, and we cannot interfere with such holding. Whether there has been a sufficient appearance in that court, it must determine according to its own rules and practice, and its determination cannot, certainly under any ordinary circumstances, be the subject of review here. Hence the exceptions were filed in time.

But, suppose the defendants were required by the rules of the Supreme Court to file their exceptions within eight days after the report of sale was actually filed, an omission to do so did not forever absolutely deprive them of any right to do so. The rules of the Supreme Court are generally under its control and are to be enforced and administered by it. It can overlook or relieve against a violation of them or a non-compliance with them. It is not the province of this court to enforce them, they relate to practice and procedure in that court, and it can permit a party to do after the time prescribed by any rule what he should have done before.

So far as appears here no harm was done to any one by the delay in filing the exceptions. It was not an absolute right of the plaintiff to have the report of sale confirmed without the hearing of the exceptions, and no substantial right of the plaintiff was interfered with in giving the defendants an opportunity to have their exceptions heard.

Hence, there is nothing to review here and the appeal should be dismissed, with costs.

AJI concur.

Appeal dismissed.