
    The United States Life Insurance Co., Resp’t, v. Mary A. Jordan, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 27, 1887.)
    
    1. Judgment—Demurrer—Powers of court as to interlocutory judgment, upon trial of—Code Civ. Pro., §1021.
    Upon the trial of an issue of law it was ordered that the demurrer be and thereby was overruled, and that the plaintiff have judgment thereon with costs, but with leave to the defendant to answer within twenty days on payment of costs, and further that the said costs be adjusted by the clerk of the court, and that thereupon an interlocutory judgment be entered in accordance with the terms of the order. Subsequently an interlocutory judgment was entered without notice, whereby, after reciting previous proceedings, the entry of the order above quoted, and the adjustment of costs by the clerk, it was adjudged that the demurrer be overruled and that, unless the defendant pay the costs and answer within twenty days, the plaintiff should have final judgment against her as prayed for in the complaint with costs. Held, that under the provisions of Code Civ. Pro., § 1021, the decision of the court, upon the trial of a demurrer, must direct not that an interlocutory judgment be entered, but the interlocutory judgment to be entered, that it must fix its terms with definiteness, and that in this particular the order in question was defective.
    g. Same—Default—Judgment upon—Rule in cases within Code Crv. Pbo., §§ 1214, 1215.
    The case at bar was one in which, upon default, application would have to be made under Code Civ. Pro., §§ 1214, 1215, for judgment. Held, that upon such application the plaintiffs would be entitled only to such relief as the facts alleged in the complaint entitled them to, and that the defendant, having appeared, was entitled to notice of such application.
    8. Same—Interlocutory judgment—Directions contained in—What ERRONEOUS.
    
      Held, that the interlocutory judgment was erroneous in attempting to fix the precise relief which the plaintiffs were to obtain upon default, although the court had, at no time, determined the precise relief to which the plaintiffs were entitled.
    4. Same—What is irregular.
    
      Held, that unless the provisions of law, empowering the court to direct the entry of a judgment, are complied with, the judgment entered in accordance with such directions, is irregular, and must be set aside upon proper application for that purpose.
    5. Same—Order directing entry of—When must be made on notice
    
      Held, that in the case at bar the court had no power to direct, if it did in fact do so, the entry of this interlocutory judgment Without notice to the defendant.
    Appeal from an interlocutory judgment claimed to have been entered in pursuance of an order overruling a demurrer to the complaint, also an appeal from an order of the special term which denied, with costs, a motion to vacate and set aside the interlocutory judgment.
    
      Wellesley W. Gage, of counsel, for app’lt; Flamen B. Caudler, of counsel, for resp’t.
   Van Brunt, P. J.

—The defendant Jordan demurred to the complaint in this action, and such demurrer was overruled and an order entered on the 10th day of March, 188Í, which after reciting the interposition of demurrer and the trial thereof, reads as follows :

c‘It is ordered that said demurrer be, and the same hereby is, overruled, and that plaintiff have judgment thereon, with costs, but with leave to the said defendant Mary A. Jordan to answer within twenty days on payment of costs. The said costs to be adjusted by the clerk of this court, and that thereupon an interlocutory judgment be entered herein in accordance with the terms of this order as aforesaid.”

On the 12th day of March, 1887, an interlocutory judgment was entered without notice, whereby, after reciting the previous proceedings, the entry of the order of March 10, 1887, which it is said directed the entry of this interlocutory judgment, the adjustment of the costs by the clerk, it was adjudged that the demurrer be overruled, and that unless the defendant Mary A. Jordan pay the costs and answer within twenty days, the plaintiff should have final judgment against her, as prayed for in the complaint, with costs.

A motion was thereupon made to vacate and set aside the said interlocutory judgment upon the grounds that the same did not conform to the order of March 10, 1887,.in that the interlocutory judgment directs what final judgment should be recovered, whereas the said order did not so direct; that the judgment-roll did not contain any record or recitation of record as provided in sections 1222 and 1223 of the Code of Civil Procedure; that final judgment was not directed as prescribed in section 1021 of the Code, and that the action was not one specified in section 420 of the Code.

This motion being denied an appeal was taken from the order denying the motion and also from the interlocutory judgment.

The case of Smith v. Rathbun (88 N. Y., 660) seems clearly to decide that the practice pursued by the plaintiffs was irregular.

In that case it is said that section 1021 of the Code of Civil Procedure provides that the decision of the court upon the trial of a demurrer must direct the final or interlocutory judgment to be entered thereupon, and that where it directs an interlocutory judgment with leave to the party in fault to plead anew or amend, it may also direct the final judgment to be entered if the party in fault fails to comply with any of the terms imposed, and that section 1222 provides that final judgment upon an issue of law where no issue of fact remains to be tried and final judgment has not been directed as provided for in section 1021 may be entered upon application to the court or by the clerk in an action so specified in section 420.

It is thus seen that the decision of the court must direct that an interlocutory judgment be entered, but the interlocutory judgment to be entered, that it must fix its terms with definiteness.

In the case at bar, by the order embodying the decree, no such direction was given. By that order it was simply ordered that the demurrer be overruled and the plaintiff have judgment thereon with costs, and that upon the taxatian of such costs an interlocutory judgment be entered herein in accordance with the terms of the order aforesaid.

The order contained no terms aforesaid. The previous provision of the order was that the plaintiff have judgment thereon with costs; what judgment the plaintiff" thereon should have with costs is not specified.

The case at bar is undoubtedly one in which, upon default, application would have to be made under sections 1214, 1215 of the Code for judgment. Upon such application it would be the duty of the court to determine the precise relief to which the plaintiffs would be entitled, and if the defendant had appeared, notice of such application must have been given to her, and she was entitled to be heard thereon.

The plaintiffs would not necessarily be entitled to the relief prayed for in the complaint, but they could have judgment only for such relief as the facts alleged in the complaint entitled them to.

In the case at bar, however, although the decision of the court upon the demurrer did not direct the interlocutory judgment to be entered, and did not determine the precise relief to which plaintiffs were entitled, an interlocutory judgment has been entered granting the plaintiffs final judgment against the defendant Jordan; granting the plaintiffs particular relief, viz.: the relief prayed for in the complaint, with costs.

This interlocutory judgment, therefore, attempts to fix the precise relief which the plaintiffs are to obtain upon default, although the court has at no time determined the precise relief to which the plaintiffs were entitled.

It is urged upon the part of the respondents that the clerk has power to enter judgment in any case, if directed so to do by the court.

But the court in every case has not legally the power to direct the entry of judgment, and unless the provisions of law which give the court the power to direct the entry of a judgment are complied with, the judgment so entered is irregular and must be set aside upon a proper application made for that purpose.

In the case at bar, the court had no power to direct, if it did direct, the entry of1 this interlocutory judgment without notice to the defendant. Thei-e is no evidence that any notice was given to the defendant, and we may well assume that none was given because the interlocutory judgment shows upon its face that it is entered because of the supposed direction contained in the order of March 10, 1887, that it should be entered, and no exercise of judicial discretion is pretended, except such as was embraced in the order of March tenth, and which order does not by any means direct the entry of the interlocutory judgment in question, and nowhere determines that under any circumstances that the plaintiff is entitled to judgment as prayed for in the complaint.

It may be suggested that upon application for final judgment, after failure to comply with terms of interlocutory judgment, notice should be given to defendant, and that then the court could determine to what specific relief the facts alleged in the complaint entitled the plaintiffs.

It is not very difficult to imagine if upon such application the defendant should insist that the facts alleged an the plaintiffs’ complaint did not entitle them to all the relief asked for, with what coaxfidence the plaintiffs wooold call the attention of the court to the fact that by the interlocutory judgment already entered, and which the defendant had. not moved to vacate or set aside, that question had been detemained.

The rights of the defeaadant, thei’efore, are seriously endangered by this irregular-judgment, and they should be protected from its effects.

The motion to set aside the said judgment should have been granted.

The order appealed from should be reversed, with ten dollars cost* and disbursements, and the motion graaited, with ten dollars costs.

The appeal from the interlocutory judgment should be dismissed, without costs.

Daniels and Bartlett, JJ., concur.  