
    O’Grady et al. v. O’Grady et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    Partition—Order of Reference—Amendment Nuno Pro Tunc.
    Where the order of reference in an aqtion for partition does not provide for notice to persons not parties to the action, who have liens on the land, as required by Code Civil Proa. N. Y. § 1560, the defect is jurisdictional, and cannot be amended nune pro tune, as against such persons.
    Appeal from Monroe county court.
    This was an action brought by Edward O’Grady and others against Henry O’Grady and others, for partition. No provision was made in the proceedings for the publication of the notice required by Code Civil Proc. § 1562, to-persons not parties to the action, having liens upon any interest in the property. Thomas Noonan had a lien on an undivided one-sixtli of the premises. He was not a party. Subsequently, against the objection of Noonan, an amendment of the original order of reference, nunc pro tune, was granted, inserting in it the necessary direction for publication of notice to lienors, and designating for such publication a newspaper that had previously, without authority, published what purported to be a notice to lienors. From this-order Noonan appealed.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      W. A. Sutherland, for appellant. J. M. E. O' Grady, for respondents.
   Dwight, J.

The action was for the partition of real estate. The interlocutory judgment directed a sale of the premises. Neither 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 section 1562 of the Code of Civil Procedure) to persons, not parties t.o 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 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 premises 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, w'as 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 section 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 section 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 (section 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 section 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. 380,) 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 $10 costs of opposing the motion, and $10 costs and the disbursements of this appeal.  