Avery v. Woodin

Section 522 of the Code of Civil Procedure provides “ each material allegation of the complaint, not controverted by the answer * * * must, for the purposes of the action, be taken as true.”

Section 1294 of the Code of Civil Procedure provides viz: “ A party aggrieved may appeal in a case prescribed in this chapter, except where the judgment or order of which he complains was made upon his default.”

In as much as no issue of fact was raised by the answer we think the complaint must be taken as true, in obedience to section 522, and we think, under section 1294, it must be held that the appellant was in default, and it was the duty of the Special Term to accept as true the allegations of the complaint which were admitted for the purposes of the action by the omission of the defendant to take issue in the modes prescribed by the Code for controverting the allegations of the complaint.

We think it has been settled by several adjudications that an appellant is not entitled to prosecute an appeal where he is in default. The interlocutory judgment follows the allegations of the complaint, and the final judgment carries forward the adjudications of the interlocutory judgment and completes the full adjudication of the rights of the parties. (Goldsmith v. Goldsmith, 11 Weekly Dig., 551.) In that case it was said, viz: “ Where the defendant appears and does not answer, but files exceptions to the referee’s report, and is heard on the application for judgment, no appeal lies from the judgment entered, the same being regarded as a judgment by default under section 1294 of the Code.” The same doctrine seems to be declared by the case of Flake v. Van Wagenen, in 54 New York, at page 21. It is insisted on behalf of the appellant that *270certain letters passing from the respondent’s attorneys to the counsel for the appellant with respect to what papers should be printed to constitute the appeal book are sufficient to obviate the objection •now made against the appeal. We think the position is unsound. Consent does not confer jurisdiction upon this court to hear an appeal. Our jurisdiction must be obtained by compliance with the pi’ovisions of law conferring appellate jurisdiction. Besides, we find in the letters of the respondent no clear intention to waive any legal rights, or to confer any power upon an appellate court to review the questions involved. We are of the. opinion the motion should be granted and appeal dismissed with costs.

Motion granted, and appeal dismissed, with costs.