Hoag v. Hatch

The special term struck out the defendant’s answer as sham, and directed judgment thereon as frivolous. The complaint was for theforeclosure of two mortgages, both on the same premises, and both executed by the defendant Thyrsa B. Hatch alone. The bond which one mortgage was given to secure was executed by Thyrsa B. Hatch and John F. Hatch, her husband. The other bond was executed by Thyrsa B. Hatch alone. Judgment has been entered upon the order, and the premises sold. Thyrsa B. Hatch took an appeal from the judgment, which was affirmed. How the de-fendant John F. Hatch appeals from the order, and a motion is made that the .appeal be dismissed. We do not see how an appeal can aid him. The complaint does not allege that he has any interest in the mortgaged premises, and .the answer claims none. All the title or interest covered by the mortgage has been effectually disposed of pursuant to the judgment of the court, valid .against the mortgagor. The present appellant had no interest in the mortgaged premises to protect. He had an interest in the amount of the debt which one of the mortgages was given to secure, but the papers do not inform us that any deficiency remains after applying the proceeds of the sale. We think for these reasons the appeal should be dismissed.

*525There are other reasons. After the order now appealed from was served and a further order made to ascertain the amount due on the mortgage, the defendant’s attorney gave the plaintiff’s attorney a stipulation waiving the service of all further papers except of the notice of sale. This was equivalent to a consent on the part of the appellant that the plaintiff might proceed upon the order without further opposition from him. The plaintiff thereafter perfected, ex parte, his judgment. We think after the plaintiff has acted in good faith upon the stipulation, omitting to make such an entry and service of the order as would limit the time in which this appeal could be taken, that the defendant ought to be bound by the consent thus implied, unless he shows cause to the court why he should be relieved from it. The affidavits show pretty conclusively that the answer was sham in fact, the only debatable question being whether it was not technically exempt from being summarily stricken out. ]Sfo case is shown which entitles the appellant to' any favor, and we dismiss the appeal, with $10 costs. All concur.