This appeal is not from a final judgment, and can only be allowable, if so at all, under subdivision three of section three hundred and thirty-six of the Practice Act, the last clause of which provides for an appeal from " a special order made after final judgment within sixty days after the order is made and entered in the minutes of the Court." See, also, last clause of section three hundred and forty-seven.
In the case of an appeal, either from a final judgment or order, the party intending to appeal, and wishing a statement of the case to be annexed to the record, shall, within twenty days after the entry of such judgment or order, prepare such statement, etc., and shall serve a copy upon the adverse party. The respondent may, within five days, prepare amendments, etc. If the admendments are not admitted, then the Judge, upon notice of two days, shall settle such statement. (Pr. Act, Sec. 338.)
An omission to prepare such statement, on the one hand, or such amendments on the other, shall be held as a waiver. (Pr. Act, Sec. 339.)
The statement, when settled, shall be signed by the Judge, with his certificate that the same has been allowed, and is correct. (Pr. Act, Sec. 341.)
In view of these provisions, it is submitted that the appeal is inadmissible, and ought to be dismissed.
If wrong in the foregoing conclusions, it is then submitted that there is no exception whatsoever presented by the record. In the supposed statement, it is said that the order under review was made, and that the appellants asked a rehearing, which was refused, and that they therefore appeal; but nowhere is there any exception to the action of the Court, and there can, therefore be nothing from which an appeal lies to this Court, save the judgment-roll. (Johnson v. Sepulveda, Jan. Term, 1855; Egery v. Buchanan, July Term, 1854.)
It is needless to site authorities here to show that a purchaser of lands under an order of sale or execution must, at his own peril, know that the sale is made under a valid judgment, and thatif the judgment is void, so is his purchase.
In the case of White v. Williams, this Court, in express terms recognized but one cause for which a Court ought to set aside or modify its judgment at a subsequent term, to wit: where the defendant was not summoned. This exception, it is presumed, is for the reason that the Court has acquired no jurisdiction of the person of the defendant, and the judgment is therefore void.
Now, it is respectfully submitted that the decision, although entirely correct in that case, does not, as reported, fully and fairly reflect the views of the Court in extenso .
If, in the case supposed, the Court can set aside or modify its judgment, at a subsequent term, because it is void for one cause, why not, when it is void for any other cause?
It is urged upon the other side that the right of homestead can only be ascertained by the verdict of a jury, and Cook v. McChristian , 4 Cal. 23, is adduced as authority for the position. Now, it will be remarked that the case cited was an ejectment, in which it was held that " the fact of the dedication of the premises in question as a homestead was properly submitted to the jury."
Inthe case now under review, no jury was demanded, and if it had been demanded, it would not have been error to have denied the request; for, as before stated, this is emphatically a case in chancery, and where chancery has jurisdiction for one purpose, it will entertain the whole case and do entire justice between the parties. In such case the intervention of a jury is only tolerated. It is no matter of right. The refusal, even, of a jury, by the Court, is not error.
The mortgage of the homestead by the husband alone, was wholly void, except, perhaps, in favor of an innocent purchaser, without notice. (Taylor v. Hargous , 4 Cal. 268.)
A decree of sale under a mortgage executed by the husband alone, and sale thereunder, could have no more validity than his actual conveyance. And here the absence of notice is expressly negatived; for it is affirmatively shown that such notice was given at the time of the sale. Nor was the wife required to join in the proceeding to set aside the sale, or modify the judgment. The mortgage, judgment, and sale, as against her and the homestead, to the value of five thousand dollars, were wholly void. Otherwise the husband may, at any time byexecuting a mortgage, suffering a default, and refusing to join his wife in a proceeding to avoid his acts, entirely deprive her of the home which an enlightened Constitution and benignant Legislature have sought to secure her. Thus, the wife and children, who are the peculiar objects of regard, may be rendered houseless and homeless by the improvidence, willfulness, or caprice of the husband and father. But to the wife, under coverture, and the children under age, laches is not to be attributed. (McHenry v. Moore, Jan. T., 1855; Sergeant v. Wilson, Oct. T. 1855; Poole v. Gerrard, Jan. T. 1856.)
And upon general principles, if a sheriff sell upon a void judgment, his sale is also void. (1 Hill S.C. 493; 8 Wend. 36.)
The appellants insist that the homestead is the joint estate of the husband and wife, and that for its recovery they must sue jointly. And Poole v. Gerrard, Jan. T., 1856, is relied upon in support of the position. Now that, again, was an action at law. The husband and wife had executed several deeds for the property, and it was held that both deeds were invalid. The wife may not have been able to sue alone, at law, but is she therefore withoutremedy? If so, the husband has only to refuse to join her in a suit, and the whole law is avoided. On the part of the respondent, it is insisted that the wife, in the proceeding under review, was not a necessary party. The mortgage, and all the proceedings thereon, were wholly void, both as against her and her husband. But even if such joinder had been proper, and could have been compelled, still, to be now available, the objection should have been made in some proper manner in the Court below. And if that Court had then erred, and the proper exception had been saved, then this Court might act. Here, however the, applicants merely objected to the Court entertaining the motion, without stating any grounds of objection, and without saving any exception. Will this Court now interfere? (Pr. Act, Sec. 40; Warner v. Wilson , 4 Cal. 310; Beard v. Knox , 5 Cal. 252.)
JUDGES: Burnett, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BURNETT, Judge
Suit to foreclose mortgage. Decree January 20, 1855. Sale of premises under decree, February 21st, 1855. Property purchased by Cohen & Silverstein, no parties to the original suit. Motion to set aside sale, September 13th, 1855. Sale set aside, and Cohen & Silverstein appealed to this Court.
On the part of respondents, it is urged that the appeal in this case should be dismissed for certain causes assigned. The causes alleged would not seem to be sufficient, except the one that the transcript was not filed within the time required by the third rule of this Court. But no motion to dismiss having been made, and the case submitted, it is too late to make the objection in the brief. Had the objection been made by motion to dismiss, then the appellants might have been able to show some good reason in excuse for the failure.
The appellants insist that the judgment of the Court below should be reversed, upon these grounds: First, because the Court had no jurisdiction of the matter, as the term of the Court had expired, and one entire term had intervened between that and the term at which the motion was made; second, because defendant, Klink, was regularly summoned and failed to set up his right of homestead before the decree in the foreclosure suit; third, a motion to set aside the sale for the cause stated, was not the proper remedy.
The record in this case is not very accurately made up, and as there may be a doubt whether the notice of the motion was given during the term at which the decree of foreclosure was rendered, it will not be necessary to determine the first point.
As to the second ground taken by the counsel for the appellants, it appears that defendant, Klink, was duly served with process in the suit to foreclose the mortgage, and made no defense. It also appears that he made the motion to set aside the sale upon the general ground that the premises were his homestead.
If, then, he could make the notice to set aside the sale, without joining with his wife, then it would seem clear that he could have set up the same matter in defense of the original action to foreclose the mortgage. And if he could singly avail himself of such a defense, he was bound to do so in the first instance; and having waived that right, he could not afterwards assert it. But the proceedings in the foreclosure suit, did not affect the right of homestead, and the defendant, Klink, could not individually assert it. He had no right to set it up, either in the original suit, or in the form of a motion to set aside the sale.
These points were settled by this Court in the late cases of Revalk v. Kramer, ante 66 and Kramer v. Revalk, ante 74.
As to the third ground, we think it is well taken. The question of homestead is too grave a matter to be tried on motion. In this case, Klink and wife should have filed a bill in the nature of a cross bill in the foreclosure suit, or they should have brought ejectment.
Judgment reversed, and the cause remanded.