Levy v. Joyce.

The Statute has pointed out the mode of bringing the party against whose property the lien was asserted to an accounting and settlement, and authorizes a judgment directing a sale of the right, title, and interest of the owner, for the payment of the amount, for which, on such accounting, a lien should be established.

But that proceeding under the Statute must be brought in a Justices' Court, or the Court of Common Pleas; this Court has no jurisdiction thereof. When the property to be affected by such a proceeding was sold by the judgment of this Court, and was withdrawn from the reach of the appellant, by any judgment or decree in his proceeding in the Common Pleas, and the controversy thereafter was to be concerning the balance due from the owner to the original contractor, which had been brought here under the order of this Court in the cross action, and which was claimed to be due to the lien holders, as a substitute for the property itself; it is obvious that novel and interesting questionschiefly questions relating to the practice of the Court, and mode of investigating and settling the claims of the parties—at once arose --and whether this Court would direct issues to try the claims, or direct an accounting and settlement to be had before the Court, or whether they must regard the Court of Common Pleas as having exclusive jurisdiction to determine the existence and amount of the Statute liens, were also questions which were new, and, in relation thereto, counsel were without the aid of any adjudication or precedent.

Again, the property having been sold, it is now obvious that if the appellant be not permitted to participate in the fund now in this Court, he is remediless. There is no property upon which a judgment, in the Common Pleas, establishing his lien, can ope rate; and therefore, if this motion be denied, his loss is inevita ble, if he indeed, have the lien which is asserted. And this he must lose, not because his claim has been investigated, and on investigation, been held invalid, but because his counsel, under the circumstances above suggested, has misconceived the mode in which that claim should be supported, or through misapprehension has failed to support it at all.

This result can be avoided without any injury or danger of wrong to the other parties. No further investigation of the

Levy v. Joyce.

claims of those whose liens are established by the former trial is necessary.

The appellant does not seek to controvert those claims. The question of priority, alone can affect the other defendants at all, and as to that question, it will be no injustice to them to permit the appellant, if he establish his claim, to stand where the priority to which he may be justly entitled, will place him.

The costs of the further enquiry may be cast upon the appellant as one of the conditions of the relief.

We think that these considerations should induce us to grant the appellant the privilege sought by his motion, unless such laches are imputable to him, by reason of the lapse of time, as should bar his appeal to our discretion.

Without impairing the value or force of the rule which requires, that motions of this description should be made without unnecessary delay, and that the party should be diligent and active in the protection of his rights, we may yet say, that where the delay has not placed the opposing party in any worse condition, or deprived him of any advantage which he ought in justice to have or keep, it is harsh to refuse what we think otherwise just on that mere ground, and we may properly allow an excuse which otherwise would be very clearly insufficient.

In this case the first alleged delay is the failure to prosecute his proceeding in the Common Pleas, after the injunction was removed. In relation to that, what has already been suggested, of the mistake or inadvertence of counsel, may be regarded as rendering the neglect excusable within the meaning and spirit of the provision of the Code already referred to.

The other supposed want of diligence consists in not making his motion at an earlier day. The motion papers do not show when the decision adverse to the appellant was made, and judgment entered. The points of the counsel, for the respondents, state, that judgment was entered in January, 1857. The motion papers were, in part, prepared in March, and the petition was served in April. At what time prior to this the appellant had notice of the judgment, does not appear.

We do not suppose that the Legislature, in limiting the time within which the Court might relieve, to one year from notice of the judgment, intended that in all cases an application within

Levy v. Joyce.

one year should be deemed in due season, when, upon the whole case, the delay seemed unreasonable and prejudicial to the adverse party. But we nevertheless regard it as furnishing some guide when mere delay is objected to what would be otherwise just, and when the delay itself has been in no wise prejudicial. Upon the whole case, the circumstances seem to us to require that the motion should be granted. But upon terms which we think will fully secure the respondents against any loss or injustice from the order to be made.

The appellant must pay the costs of the motion at Special Term.

He must execute to the respondents an undertaking with at least one resident surety, in $250, for the payment of all the costs of the inquiry which is opened.

He must consent to a reference, or to a trial before the Court, as the respondents may elect, waiving all claim that the lien should be tried and determined in the Court of Common Pleas, and enter into a stipulation to that effect.

He is not to question the amount of the claims of the other parties, nor open any question that is settled by the adjudication already made, except only the amount of his own claim, and its priority in relation to the other parties.

Upon these terms, the judgment may be so far opened as to permit the appellant to establish, if he be able, that he has a lien, the amount thereof, and the order of priority which it equitably or legally has, as between all the parties, and that such modification of the judgment already entered may be made, or such new judgment may be thereupon entered, as to the Court at Special Term may seem just.

Ordered accordingly.

Keyes v. Moultrie.

SETH C. KEYES v. WILLIAM MOULTRIE and THOMAS PALMER.

When an action, in form, against two persons jointly liable, is commenced by a service of the summons on one defendant alone, and a notice of appearance, by the latter as attorney for both, is served, and he puts in an answer for himself only, and a trial is had on the merits, and a judgment dismissing the complaint is rendered; and on proof, that notice of appearance for both defendants was served by mistake and without authority, a motion is made to have the judgment, which has been entered, recite that the defendant not served did not appear in the action, although such relief may be granted, it is error to vacate the judgment, and all proceedings had subsequent to the day preceding the trial, and to grant a new trial to the plaintiff.

When a judgment for such a cause, is thus modified in its recitals, a plaintiff who has relied on such notice of appearance, as authorized and valid, should be relieved from all proceedings had on the faith thereof, which would be valid if such notice was authorized, but which are invalid, or may be avoided, if it was unauthorized, and from such proceedings only.

When the action has been tried on its merits, as if both defendants had appeared, if no error was committed at the trial, the plaintiff should not have a new trial, merely because the unauthorized notice is allowed to be corrected, and the recitals in the judgment made to state the truth in that behalf. If error was committed at the trial, the judgment would be reversed on the plaintiff's appeal, as well with the recital of the non-appearance of Palmer in it, as if it recited the fact of his actual appearance.

(Before DUER, Ch. J., BOSWORTH, HOFFMAN, SLOSSON, and WOODRUFF, J.J.) Heard, Nov. 21; decided, Nov. 28, 1857.

THIS action comes before the Court at General Term, on an appeal by the defendant Moultrie, from an order made by Mr. Justice HOFFMAN on the 24th of October, 1857.

The complaint states as a cause of action, that the defendants made their joint note, payable to their own order fifteen days from the 6th of October, 1856, for $1,000, and endorsed and delivered it to the plaintiff, and that they have paid only $300 on account of it. That, to secure the residue, the defendants agreed that Moultrie should execute his bond for $1,000, and a mortgage of a house and lot belonging to him, to secure the same, and deliver the said bond and mortgage to the plaintiff; that the latter should thereupon advance to the defendants $500 in cash, and they should give their joint note to him for $2,000.

Keyes v. Moultrie.

That the plaintiff having an opportunity, as he supposed, to negotiate said bond and mortgage, requested that they should be drawn, payable to Palmer as obligee and mortgagee, and that he should assign them to the purchaser thereof. That they were, thereupon, so drawn and delivered to the plaintiff, both defendants agreeing that Palmer should assign them to such person as should purchase them, and the plaintiff thereupon, on the 3d of January, 1857, paid to the defendants $300, on account of said $500.

That being unable to negotiate the said bond and mortgage, the plaintiff returned them to Moultrie about the 27th of January, 1857, requesting new ones to be drawn directly to himself, which Moultrie promised to do. On the 31st of said January, the plaintiff demanded of the defendants the bond and mortgage, and their note for $200, and tendered $200 cash (residue of the $500), and they promised to send to him the new bond and mortgage, and their note for $200, and take the $200 in money and the old note of $1,000. That, on the 31st of January, Moultrie wrote to the plaintiff that he had changed his mind, and refusing to deliver the said bond and mortgage. It demands judgment that the defendants pay the plaintiff the amount due him as aforesaid, and that Moultrie execute and deliver to the plaintiff the bond and mortgage agreed on, and that the defendant Moultrie be in the meantime enjoined from disposing of or encumbering said house and lot, etc. This action was commenced in February, 1857.

Moultrie, being an attorney, served notice of appearance, as attorney for himself and Palmer. Palmer was not served with the summons. Moultrie put in an answer for himself alone. The action was tried before Mr. Justice HOFFMAN, June, 1857, without a jury, and he gave judgment, dismissing the complaint.

The plaintiff made a case, and appealed from the judgment to the General Term. The judgment, as entered, did not show that Palmer had appeared in the action. The Judge amended it, on an ex parte application, so that it stated such to be the fact. Thereupon the defendant Moultrie moved before the same Judge, (on affidavits showing that his clerk, who drew the notice of appearance which was served, by mistake and without authority, and without Moultrie being authorized to appear for Palmer,