JOHN S. JONES, Appellant, Respondent,
GEORGE J. GOULD and WILLIAM E. GUY, Appellants, Respondents, Impleaded with JOSEPH RAMSEY, JR., Defendant. (No. 1.)
CROSS-APPEALS by the plaintiff, John S. Jones, and the defendants, George J. Gould and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of March, 1911.
Edgar T. Brackett, for the plaintiff.
Rush Taggart, for the defendants.
This is an appeal by both parties from an order made upon plaintiff's motion for an order correcting the judgment which was entered herein on December 17, 1907, by striking out the words 'on the merits' wherever they occur.
The facts appear to be as follows: This is one of two actions commenced by plaintiff against defendants appellant and Joseph Ramsey, Jr., upon the same facts and for the same relief, but, as it is said, upon different theories as to plaintiff's right to recover. This action is No. 1. It was begun in June, 1905, action No. 2 having been begun in January, 1906. This action came on for trial before the court and a jury in 1907, and at the close of the plaintiff's case it was dismissed as to the appellants Gould and Guy, and proceeded to a verdict as to the defendant Ramsey. The judgment which was entered dismissed the complaint as against Gould and Guy 'upon the merits.' The plaintiff, although he appealed from this judgment in so far as it dismissed the complaint against Gould and Guy, did not prosecute his appeal, and it was dismissed. The Appellate Division reversed the judgment as against Ramsey and ordered a new trial. (Jones v. Ramsey, No. 1, 127 A.D. 704.) Action No. 2 had previously come on for trial before the court and a jury and resulted in a verdict against all the defendants, upon which a judgment was entered. From this judgment an appeal was taken to the Appellate
Division, which reversed it with an opinion indicating that the complaint did not state a cause of action. ( Jones v. Gould, No. 2, 123 A.D. 236.) Defendants then moved upon the pleadings at Special Term to dismiss the complaint. This motion was denied, but the order was reversed at the Appellate Division and judgment entered for the defendants. (Jones v. Gould, 130 A.D. 451.) This judgment was reversed by the Court of Appeals (200 N.Y. 18), upon grounds which necessitate a new trial upon the merits. The plaintiff now expresses himself as apprehensive that the defendants Gould and Guy may attempt to interpose in action No. 2 the defense of res adjudicata by pleading the dismissal of the complaint on the merits in action No. 1. To avoid this possibility he now seeks to strike out from the judgment in action No. 1 the words 'on the merits,' so that the judgment will show, as he asserts was the fact, that the dismissal as to Gould and Guy was only a nonsuit. The record before us is a little confused. It appears that the attorneys for Gould and Guy at first, for what reason we do not understand, refused to appear upon the motion except 'specially' for the purpose of objecting that the court had no jurisdiction to entertain the motion. Of course, there was no force in this objection, for the court always has jurisdiction over its own judgments to correct them if a proper case is made out for such action. (Ellis v. Hearn, 132 A.D. 207.) The only question upon such a motion as the present is whether or not the desired correction should be made, and this is not a question of jurisdiction. The court at Special Term was, therefore, right in holding that it had jurisdiction to hear the motion, and the defendants' appeal is, therefore, not well taken.
After the time limited by the rules for the service of answering affidavits had expired, the defendants sought to appear generally in opposition to the motion, but the plaintiff refused to receive their affidavits and objected to their being allowed to appear and be heard upon the merits. The court declined to grant such an important motion upon default, when the defendants were striving to be heard upon it, and denied plaintiff's motion, with leave to renew. The plaintiff, instead of availing
himself of the leave to renew the motion, now appeals to this court from the order, in so far as it denies his motion, and prints as a part of the appeal papers the affidavits and exhibits which defendants sought to read in opposition to the motion. From this circumstance we assume that plaintiff intends to submit the appeal on all the papers, waiving any objection he may have heretofore raised to the right of the defendants to appear and oppose the motion on the merits. This assumption is strengthened by the fact that we find among the appeal papers, after a statement of the objections which plaintiff interposed to defendants' general appearance, the following note: 'Stipulation adjourning hearing until March 21st, 1911, and waiving the above objection No. 1.' As the objection thus apparently waived was the only one worthy of any consideration, we conclude that there is no obstacle in the way of a determination on the merits.
There has been no little uncertainty and confusion concerning the proper practice as to the dismissal of a complaint. Properly speaking, a judgment of dismissal should be entered only when it is intended to nonsuit the plaintiff, but it has frequently happened that judgments have been entered in the form of a dismissal on the merits, when what was really intended was the rendition of a final judgment against the plaintiff. 'Where a complaint is dismissed because of failure of proof, the dismissal is not upon the merits, because the merits are not involved, the complaint being dismissed because of want of merit in the proof. It is only where a prima facie case is made out, and proof offered to rebut it, that the merits are involved.' (Martin v. Cook,14 N.Y.S. 329, 331; Koewing v. Thalmann,139 A.D. 893; Molloy v. Whitehall Portland Cement Co., 116 id. 839, 843.) If the direction for judgment was made because the plaintiff had failed in his proof, it must, therefore, be construed as a dismissal of the complaint, and the words 'on the merits' had no proper ...