
    Edward O’Grady et al. v. Henry O’Grady et al.
    
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    1. Partition—Amendment—Notice to lienors—Code Civ. Pro., § 1562.
    An order of reference cannot be amended nunc pro tune so as to give effect to an unauthorized publication of notice to lienors made two years before. No retroactive amendment can cure a jurisdictional defect.
    
      % Same.
    The fact that the judgment contained a provision for payment of liens, and that the debtor’s share was exhausted by a prior lien is no answer to an objection to such an order.
    Appeal by a judgment creditor of the defendant Henry O’Grady from an order of the county court of Monroe county.
    Wro. A. Sutherland, for app’lt; J. M. E. O’ Grady, for resp’ts,
   Dwight, J.

The action was for the partition of real estate. The interlocutory judgment directed a sale of the premises. Neither1 the order of reference to take proofs, etc., nor any other order prior to judgment, contained any provision for the publication of notice, required by § 1562 of the Code of Civil Procedure, to persons, not parties to the action, having liens upon any undivided share or interest in the property. The appellant, Thomas Noonan, who was not made a party to the action, had a lien by judgment on the undivided one-sixth of the premises which was owned by the defendant Henry O’Grady. What purported to be a notice to lienors, in the usual form of such notice, was printed without authority in a newspaper published in the county where the preim ises were situated, but it never came to the attention of the appellant and he had no knowledge of the action, or of any of the proceedings therein until after the final judgment and a distribution of the fund.

Nominal provision was made in the interlocutory judgment for the payment of liens on the share of the defendant Henry O’Grady; but the balance of the fund representing his share, after satisfying other provisions of the judgment, was exhausted in payment of a lien prior to that of the appellant, and the latter received no part of the fund.

The original order of reference was made May 12, 1887. On. the 22d day of March, 1889, the plaintiffs gave notice to the appellant (by service of an order to show cause) of a motion to amend the original order of reference, nunc pro tune, by inserting in it the necessary direction for the publication of notice to lienors, and designating for such publication the newspaper in which the notice had been published without authority. The motion was granted notwithstanding the objection of the appellant, and an order for such amendment was entered on the 28th day of March, 1889 ; from that order this appeal was taken.

The order was clearly erroneous. The objection to it was jurisdictional. It was an ex post facto order which assumed to; remedy a jurisdictional defect in proceedings by which it was sought to deprive the appellant of property rights. It assumed to give conclusive effect to the publication of a notice which had been made nearly two years before without any authority of law, and by that means to validate a judgment which as to the appellant was absolutely void for want of jurisdiction. The appellant not having been made a party to the action, 'as might have been done under § 1543 of the Code of Civil Procedure, the only mode by which the court could acquire jurisdiction of him and of his rights as a lienor was by the publication of a notice under the provisions of § 1562 of the same statute. Such publication would have been, at the best, only constructive notice, and to give it effect as such it must be in strict compliance with the statute. Hallett v. Righters, 13 How. Pr., 43. The statute itself, § 1578, makes the judgment in such an action a bar to the rights of the lienor only in case notice “ was given * * * . as prescribed in § 1562 of this act.” Such notice cannot be given ex post facto, two years after the judgment has been rendered.

The ineffectual provision of the interlocutory judgment for payment of liens on the share of Henry O’Grady is no answer to the objection to the order in question; the appellant received no-benefit from that provision. Nor does the fact that Henry O’Grady’s share of the proceeds of the sale was exhausted before the lien of the appellant was reached, determine the question whether the latter was prejudiced by the omission to bring him in. as a party to the proceedings. Prejudice is to be presumed in every case where a party’s rights are adjudged without a hearing or an opportunity to be heard; and, under the facts of this case, it is quite probable that if the appellant had been heard at the various stages of the proceeding, the value of his lien might have been preserved in whole or in part.

The respondents rely upon the liberal provisions of the Code of Civil Procedure in respect to amendments; but it is clear that no retroactive amendment can cure a jurisdictional defect, Kendall v. Washburn, 14 How. Pr., 38, nor will any amendment in pleadings or proceedings be allowed for the benefit of one party, without provisions which save the rights of all other parties to be affected 'thereby.

The order appealed from should be reversed and the motion denied, with costs.

Order reversed and the motion denied, with ten dollars costs of opposing the motion and ten dollars costs and the disbursements Oí this appeal.

Barker, P. J., and Macomber, J,, concur.  