Aikin v. Morris

6 Sarat. Ch. Sent. 65

Opinion

Application by appellant to set aside a decree of affirm-anee. Decided that mortgage cases of the fourth class are entitled to a preference at the hearing over other cases of that class, unless an affidavit of merits is filed, and the filing thereof noted on the calendar. It is not necessary that a new affidavit should be filed at every term the cause is noticed for hearing. But that, to deprive the complainant of the preference given by the 91 st rule, the defendant must see that the fact of the filing of such an affidavit is duly noted upon the calendar at every term.

That if mortgage causes of the fourth class are not moved at the time that order of business is called for, they lose their preference; and must be heard, with other causes of the fourth class, in the order in which they are placed upon the calendar.

That the preference given to mortgage cases of the fourth class, also applies to such cases when they are brought before the chancellor upon appeal, if the decree of the vice chancellor was in favor of the complainant. But where the decree was in favor of the defendant the legal presumption is that the decree was right; and the cause will not be entitled to a preference, although no affidavit of merits is made by the respondent. That in case the decision was in favor of the complainant in the foreclosure suit, a new affidavit of merits in the appeal cause must be filed, as well as noted on the calendar; or the respondent will have the right to claim a preference over other causes of the fourth class when that class of causes is reached.

Motion denied with costs.