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and the course to be pursued thereon is substantially the same, with this single exception, that the evidence brought forward must be strictly and solely confined to the measure of relief to be granted, the right to that relief being no longer capable of being drawn into question, as having already been made the subject of adjudication.
On the verdict of the jury being given, it must be duly returned to the court above, and, on that return, the final entry of judgment for the amount so assessed, follows as of course. See form of postea in Appendix, which, with the original order and sheriff's return, must be annexed to the roll filed on the original entry, after which the judgment is complete in all its parts, and may be docketed and enforced accordingly.
The above are the different proceedings necessary to perfect the final entry of judgment, in the different cases to which they are applicable. A few consequential proceedings, subsequent to the entry of judgment, and independent of the ordinary process of execution, remain to be shortly alluded to.
Of this nature are the proceedings in relation to a decree of foreclosure, necessary for the purpose of carrying that decree into full effect by sale of the premises. These proceedings do not vary in any essential respect from those under the old practice, except that the sheriff is now the proper officer to
Page 480, 6 lines from bottom. This application may now be made, “on filing the report of the sale," under Rule 48, late 51, as recently amended. The Rule of the judges of the first district, passed 2012 February, 1851, to the effect that an order of reference as to surplus moneys on a sale of real estate, shall not be granted, unless the application be accompanied by certificates that the report of sale has been confirmed, and that the surplus has been paid into the chamberlain's hands, seems to be virtually abrogated by the effect of the recent revision.
referees of particular questions. On such confirmation, any person claiming an interest in the surplus, after due satisfaction of the plaintiff's claim, is at liberty to apply to the court. The form of proceeding in these cases is prescribed by Rule 51. It consists of a notice, to be filed with the clerk, stating the nature and extent of such claim, whereupon an order of reference is
granted, “ to ascertain and report the amount due to the claimant or to any other person, which is a lien upon such surplus monies, and to ascertain the priorities of the several liens thereon." Every party who has appeared in the cause, or who has filed a similar notice, is entitled to service of notice to attend on such reference, and also of all subsequent proceedings, such service to be personal, or by mail, where the party or claimant has not appeared by attorney ; but, if he has, then on such attorney, as in other cases. The proceedings on the reference are conducted in the usual manner, and the report, when made, must be confirmed, and application made to the court, grounded thereon, for the final distribution or disposition of such surplus. A certified copy of the order of the court in relation to this application, will form the sheriff's authority for paying over or applying the surplus, in accordance with the directions thereby given, on which payment or application, the matter will be finally wound up. The widow of a deceased mortgagor may claim her proportionate part of the surplus in these cases, to be invested on the usual terms, for the purpose of providing for her dower.-Denton v. Nanny, 8 Barb. S. C. R. 618. It is not competent for a party entitled to a share in the surplus, to assert his right thereto by proceedings supplementary to execution, under sec. 294. His regular course is to apply by motion or petition, in the partition suit.-Anon., 1 C. R. (N. S.) 211.
The consequential proceedings on a decree for partition, are of a still more complicated nature. In no respect, however, are these proceedings altered or governed by the Code, or the recent rules, and they, therefore, remain precisely as they were under the old practice, the works on which should be accordingly consulted.
On carrying out decrees of the foregoing nature, it frequently becomes necessary to make provision for the protection of tenants for life in the property, or for the contingent interests of married women, or of possible tenants by the curtesy. Two courses are open for this purpose, the one, the payment into court and investment in permanent securities, of an adequate sum to provide for the future continuance of the benefits arising in respect of such interest; the other, the acceptance, by the party entitled, of a gross sum in lieu thereof. Provision is made for these cases, and the mode in which compensation of the latter description is to be estimated, is pointed out by rule 80.
Under various other circumstances, the payment of money into court, and its investment, may form part of the relief arising out of a judgment or decree, particularly in cases of an equitable description. The mode of payment in such cases, and the accounts to be passed from time to time, by the authorized depositaries, are prescribed by rules 83 and 84. On any party becoming entitled to the re-payment out of court of any money so deposited, either by failure of the particular interest in respect of which such money was set apart, or otherwise ; the proper course is to apply to the court under whose jurisdiction the deposit has been made, for an order for that purpose, on notice of such application to all the different parties interested in the fund, as parties to the suit, or otherwise. The course to be pursued for payment of the amount dealt with on an order so obtained, is prescribed by rule 85, which contains various special directions, in relation to the investment, accumulation, and disposition of funds paid into court in any proceeding, and otherwise in relation thereto.
Numerous other instances might be adduced of matters consequential upon judgment, and unconnected with the ordinary process of enforcement by way of execution, but to enter into further details seems unnecessary. Several of them will be hereafter considered, under different heads; and in relation to any other, a careful reference to the books of the old practice, to which, in fact, all proceedings of this peculiar nature belong, will afford all the further information required.
In all proceedings of this description, the mode of enforcement of the directions of the court, can only be by the ordinary process of contempt for disobedience of its or In none of them is execution an appropriate, or an applicable remedy.
THE SETTING ASIDE OR AMENDMENT OF JUDGMENTS BY INTER
LOCUTORY PROCEEDINGS, AND LASTLY, OF THE ENTRY OF SATISFACTION.
The consideration of this branch of this subject remains to be dealt with, before passing on from the actual entry of judgment to the proceedings for its enforcement. Of course, measures of this nature are totally distinct from those for the review of a judgment in the ordinary mode, by means of an appeal, which subject will be taken up in a subsequent division.
A judgment when entered, may be set aside on interlocutory application, either,
1st. As a matter of right, on the ground of irregularity, or, 2d. As a matter of favor.
The setting aside a judgment, on the ground of irregularity, can only take place on an application grounded on the usual notice of motion to the adverse party, and supported by affidavits, clearly showing the particular irregularity on which that motion is founded. To enter into details as to the different irregularities in respect of which this course of proceeding is admissible, would be superfluous, the various defects which may be thus drawn into question, having been already noticed, under the different heads of proceeding in which they are liable to occur.
If substantial error be shown, an order will follow as of course ; and, almost equally of course, the applicant will be entitled to his costs of the motion.
If on the contrary, he fail, the imposition of those of his adversary may be looked forward to.
If, the motion be successful, the correction of the judgment book, and the taking of the roll off the file, will follow as a necessary consequence, on entry of the order. If docketed in other counties, a certified copy of such order should be transmitted to the clerk of each, with a view to a similar entry being made by him, in order to discharge the lien, as regards property in that district. If execution have been issued, the service of such a certified copy upon the sheriff will also be necessary, to stay his further proceeding.
The powers of the court to relieve parties against whom judgment has been entered, under any circumstances of hardship whatever, are most extensive : they are contained in sec. 174, which runs as follows:
$ 174. The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made or other act to be done after the time limited by this act, or, by an order, enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and may supply an omission in any proceeding; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may in like manner and upon like terms, permit an amendment of such proceeding, so as to make it conformable thereto.
The extensive powers here conferred upon the court have been most largely and liberally exercised, in cases where judgment has been entered for want of an answer, or on default, or where an inquest has been taken. These subjects have already been fully entered upon, and the cases cited. Wherever any case has been reasonably capable of being reduced to any of the four categories laid down in the section in question, i.e., those of mistake, inadvertence, surprise, or excusable neglect, and the application has, been made in good faith ; relief has, as a general rule, been always afforded, and, in many cases, the rule has been stretched to the utmost extent of liberality. See, in particular, Allen v. Ackley, 4 How. 5. See, also, the cases of Lynde v. Verity, Salutat v. Downes, Foster v. Udell, Dudley v. Hubbard, McGaffigan v. Jenkins, Grant v. McCaughin, Washburn v. Herrick, Kellogg v. Klock, Lawler v. Saratoga Mutual Insurance Company, Raynor v. Clark, Litchfield v. Burwell, and many others before cited under different heads.
In fact, as a general rule, the taking of a judgment of this description will be of no practical avail, as regards the ultimate issue of the cause, in cases where the adverse party has a real defence. Notwithstanding this, however, it will, as a general rule, be right to enter up such judgment at once, except in cases