
    Fales v. Lawson et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    February 7, 1889.)
    1. Judgment—Entry—After Demurrer Overruled. .
    Where a defendant in an action to foreclose a mortgage fails to answer in accordance with leave given after a demurrer by him has been overruled, but issues raised by other defendants remain to be tried and a reference is to be had, a judgment entered against the defendant demurring on the order overruling the demurrer can only be interlocutory, under Code Civil Proc. N. T. § 1021, providing that final judgments can be entered, where leave to plead over is given, only where no other issues remain to be disposed of.
    2. Appeal—Time oe Taking—Interlocutory Judgment.
    Where an appeal from such judgment is not taken in the proper time it can only be reviewed, if at all, on appeal from the final judgment.
    S. Costs—On Demurrer—When Taxable.
    Aprovision in such judgment for costs was improper; the costs on the argument of the demurrer being a part of the final costs in the action.
    Appeal from special term, Saratoga county.
    Action by Francis A. Fales against Thomas B. Lawson, the Globe Knitting ■Company, and others, to foreclose a mortgage upon the Globe Knitting Mills. Judgment was entered against the Globe Knitting Company on a demurrer, and it appeals.
    Argued before Learned, P. J., and Ingalls and Landon, JJ.
    
      B. P. White, for appellant. B. B. Bullard, for respondent.
   ON MOTION TO DISMISS APPEAL.

Learned, P. J.

This is an action of foreclosure, in which the plaintiff asks also the special relief of an injunction to prevent defendants from selling certain machinery, .etc. The defendant the Globe Knitting Company demurred for misjoinder of causes of action. On argument, September 25th, the demurrer.was overruled, with privilege to answer in live days, on payment of $35 costs to plaintiff. This defendant did not avail itself of this privilege, and on October 8th the plaintiff entered a judgment against this defendant overruling this demurrer, and for $73.34 costs against this defendant. On the 26th of November this defendant moved to correct this judgment by inserting the word “interlocutory,” and striking out the provision for costs and the docket of said judgment. This was made on an affidavit showing that plaintiff had commenced an action for sequestration upon that judgmeat and for the appointment of a receiver. This motion was denied. The defendant, on December 17th, appealed from this judgment of October 8th. The plaintiff now moves to dismiss that appeal on the ground that it was not taken in time.

The plaintiff’s practice is not correct. The judgment of September 25th should have provided what was to be entered thereon. Code, § 1021. He was not authorized to enter a judgment for costs. The action was not severed, (section 1205,) and the costs on the argument of the demurrer were part of the final costs in the action. Seetion 1021 only allows final judgment to be entered (where leave to plead over is given) in case no other issue remains to be disposed of. He could not enter a final judgment until the issues of fact raised by other defendants had been disposed of, nor until the usual reference had been had against parties not appearing. The judgment of October 8th was simply interlocutory, because, according to the definition of the Code, § 1200, it was not a final determination. Being interlocutory, if the defendant did not appeal from it in the proper time, he can only review it, if at all, by appeal from the final judgment ; and that final judgment will be the judgment decreeing a foreclosure and sale, which can only be had when all the issues shall have been disposed of. This appeal therefore must be dismissed

And we have stated what the practice should have been and wherein the plaintiff is incorrect. As has been said above, the judgment of September 25th ought not to have provided for any final judgment, because other issues remained to be disposed of, and the action could not properly be severed.

There is a motion to stay proceedings on an appeal, from another order in this case, on the ground of non-payment of costs. That motion is denied.

on appeal from order.

Learned, P. J. This is an appeal from an order made December 4th, denying a motion to correct a decision to cancel a docket of judgment, etc. Most of the facts have been stated in the opinion given at this term on another motion in this case. The object of this motion was to correct the judgment entered October 8th, after defendant had failed to answer in the five days allowed by the judgment of September 25th. This judgment of October 8th was not entered, as it appears, on any application to the court at that time. It was entered on the authority of the previous judgment of September 25th. But under section 1021 that judgment could not direct a final judgment, and it did not attempt to specify the judgment to be entered. We have already said in our previous opinion that under section 1200 this is not a final judgment, and that under section 1021 a final judgment could not be rendered, because there could not be a severance, and other issues existed. Section 3282 does not apply, because the issues of law and fact are not between the same parties. It would seem that only a part of the mortgage debt is payable, and hence there must be a reference to see whether the property can be sold in parcels, etc. Section 1636.

It may not be productive of any evil for the plaintiff in such a case to enter what he may call an interlocutory judgment, in order to show that the defendant’s privilege of answering is at an end, although this is perhaps unnecessary; for the defendant’s default for not answering in the five days is like the default for not answering in 20 days from service of answer and complaint. If there are other defendants, the plaintiff waits until all are in default, and then takes the proper judgment. See sections 1214, 1221.

We think, therefore, that the order appealed from should be reversed, with $10 costs and printing disbursements, and the motion of the defendant granted, with $10 costs.  