Atwater v. Kinman

1 Harr. Ch. 243

• Court: Michigan Court of Chancery
• Decided: January 16, 1841
• Status: Published

Opinion

The Chancellor.

Where no preliminary order is required, it is not necessary that bills should be sworn to, although the answer under oath is not waived. This is not required by the English practice, or by the rules of this court, as they now stand.

As to the other point raised by the demurrer, it is alledged that, in the proceedings to foreclose under the statute by advertisement, a mistake occurred, which renders the proceedings irregular and voidable.

It would certainly be in the power of the mortgagee to w'aive those proceedings and commence de novo, under the statute.

And this being undoubtedly competent, I can see no reason why he may not avail himself of the right he had in the first instance, and seek his remedy in this court. If he seeks his remedy here, he of course waives the proceeding. under the statute, and all claim for costs under that proceeding.

I can see no reason for the argument, that, by first proceedun<^er the statute, which proceeding, by mistake or accident, is inoperative- or void, that the party has made his election, and cannot have relief here.

ipjje demurrer must be overruled with costs.