Cowman v. Lovett

10 Paige Ch. 559, 1844 N.Y. LEXIS 427, 1844 N.Y. Misc. LEXIS 94

• Court: New York Court of Chancery
• Decided: March 5, 1844
• Status: Published

Opinion

The Chancellor.

The motion to vacate or discharge a part of the order of the vice chancellor, of the 6th of November, 1843, allowing the complainant to amend, &c. is not properly made to this court, and must be denied. But I am inclined to think that the part of the order complained of was erroneous, if not irregular. The cause was commenced and was pending before the chancellor. And the reference to the vice chancellor of the motion to dissolve the injunction, did not give him jurisdiction to make an order to amend the bill, in the suit which was still pending before the chancellor. The proper order therefore would have been that the injunction be dissolved, but without prejudice to the complainant’s right to apply to the chancellor to renew the injunction upon an amended bill; thereby leaving the complainant to apply here to amend his bill, and to have the injunction restored, if he thought proper to make such an application. But as this order is not entered in the suit before me, but in the office of the clerk of the vice chancellor, if it is erroneous it can only be brought before me upon appeal. And if it is irregular merely, the proper course is to apply to the vice chancellor himself, to correct the supposed irregularity in the proceedings before him. The order of the 6th of December, 1843, was not intended to declare the right of the defendant to apply here for relief, but merely to reserve to him the privilege of applying here, if upon examination of the question his counsel should advise him to apply here to set aside the order, as well as the amendments which had been filed under the supposed authority contained in such order. So much of that motion as seeks to have the amendments stricken from the files must also be denied. For there is no proof of the service of Hall’s affidavit, of the 8th of January, to be used upon this motion, the due service of which affidavit is denied. And without that affidavit there is nothing to show that the amendments have not been duly filed, under an order made by the proper officer of the court before whom the suit was pending. Again; the amendments were served as early as the 15th of November, and the alleged irregularity may be considered as only technical at most. In such cases the application to set aside the proceedings must bema de the first opportunity.

Considered as a demurrer to the original bill, the demurrer filed by the defendant Lovett was clearly irregular. For the time for answering the original bill expired on the 28th of November ; and- the defendant could not put in a demurrer under the chamber order for further time to answer, which was granted by the vice chancellor on that day. (Burrall v. Raineteaux, 2 Paige’s Rep. 331.) But the amendments to the bill being now considered as regularly made, and served on the 15th of November, the defendant Lovett had forty days from that time to answer or demur to the amended bill, under the provisions of the 45th rule of this court. Where the bill is amended after answer, if the complainant requires a further answer to the amended bill, he must enter a new order, that the defendants answer the amendments within forty days or that the bill as amended will be taken as confessed, or that an attachment issue, if a discovery is required in answer to the amendments. (8 Paige's Rep. 595.) And even where an answer to the amendments is waived, where an answer to the original bill has already been filed, the complainant must give a notice of such waiver, and that unless the defendant shall answer the amended bill within forty days he will be considered as having elected to let his former answer stand as an answer to the bill as amended.

But the practice does not appear to be settled, as to the necessity of a new orde.r to answer the amended bill, where the amendments are made before any answer, plea or demurrer to the original bill has been filed. I am inclined to think, however, that the proper practice in such a case ■ is to enter a new order, to answer the bill as amended ; giving the same time to answer which the defendant originally had, in conformity with the provision on that subject contained in the 45th rule. And a notice of such order, to answer the bill as amended, should be served on the defendant’s solicitor. In this case no such order appears to have been entered, nor- was any new notice served with the amendments to the bill. I think, therefore, this demurrer was filed and served in time to make it regular, as a demurrer to the bill as amended, notwithstanding the chamber order of the 23d of November ; which order could only be of use, to extend the time to answer the original bill, in case the defendant should succeed in setting aside the amendments as irregularly filed. The demurrer must therefore be permitted to stand as a regular demurrer to the bill as amended. And neither party is to have costs as against the other upon these applications.

The cause being how in readiness for hearing, upon the amended bill and the demurrer thereto, it is referred to the vice chancellor of the first circuit to hear and decide the case upon such demurrer.