BOLLER v. BOLLER, N.Y. App. Div., Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Attorney(S)

George A. Stearns, for the appellant. B.W.B. Brown, for the respondent.

Judges

PER CURIAM:

See more information ...

Smart Summary

Factual and Procedural Background

This action sought a judgment of divorce. Certain issues were tried before a jury, after which the case was placed on the Special Term calendar for trial. [1]

When the defendant did not appear at trial, the plaintiff obtained an interlocutory judgment without notice of the application. The defendant then moved to vacate the judgment, arguing, among other things, that notice had not been served. The motion was denied, and the defendant appealed. [2]

Legal Issues Presented

Whether the defendant’s attorney was entitled to notice of the application for interlocutory judgment. [2][3]
Whether the judgment was additionally defective because no decision appeared to have been made. [4]

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Reynolds v. Ætna Life Ins. Co., 6 App. Div. 254	The absence of a decision is fatal to the judgment.	The court cited the case in support of vacating the judgment because no decision appeared to have been made. [4]
Hall v. Beston, 13 id. 116	The absence of a decision is fatal to the judgment.	The court cited the case with other authorities supporting that conclusion. [4]
McManus v. Palmer, Id. 443	The absence of a decision is fatal to the judgment.	The court cited the case with other authorities supporting that conclusion. [4]

Court's Reasoning and Analysis

The court concluded that, under the undisputed facts in the moving papers, the defendant’s attorney was entitled to notice of the application for judgment. Because no notice was given, the interlocutory judgment should have been vacated. [3]

The court also observed that the record did not show that any decision had been made. If no decision had in fact been made, that defect independently rendered the judgment invalid under the cited precedents. [4]

Holding and Implications

The order denying the motion to vacate was reversed, and the motion to vacate the interlocutory judgment was granted. The court awarded ten dollars in costs and disbursements on the appeal and ten dollars in costs on the motion. [5][6]

The direct effect was to vacate the interlocutory judgment because the required notice was not provided and, potentially, because no decision had been made. The opinion discusses no broader implications, and no new precedent was set.

Show full summary ...

WILLIAM N. BOLLER, Respondent, v. NAOMI S. BOLLER, Appellant.

PER CURIAM:

This action was brought to recover a judgment of divorce. Certain issues were tried before a jury and thereafter the cause was placed upon the Special Term calendar, Part 3, for trial.

At the trial the defendant did not appear and thereupon the plaintiff's counsel moved, upon the summons, complaint, notice of appearance and answer of the defendant, the order directing the trial by jury of the issues, the verdict of the jury and the minutes of the clerk of the part where the jury trial had taken place for an interlocutory judgment. The motion was granted, notwithstanding the fact that no notice of such application had been given (Code Civ. Proc. § 1225; Gen. Rules Pr. rule 37) and that plaintiff under rule 76 of the General Rules of Practice was not entitled to a judgment by reason of defendant's default. The defendant's attorney thereafter obtained an order to show cause why the interlocutory judgment should not be vacated upon the ground, among others, that notice of the application for judgment was not served upon him. Upon the return of the order to show cause the application to vacate was denied and the defendant has appealed.

We think this order should be reversed. Under the facts set out in the moving papers, none of which are denied, the defendant's attorney was entitled to notice of the application for judgment, and such notice not having been given, the judgment should have been vacated.

It does not appear that any decision was ever made, and if this be true, that is also fatal to the judgment. ( Reynolds v. Ætna Life Ins. Co., 6 App. Div. 254; Hall v. Beston, 13 id. 116; McManus v. Palmer, Id. 443.)

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.