Detroit Fire & Marine Insurance v. Renz

33 Mich. 298, 1876 Mich. LEXIS 39

Opinion

Per Curiam:

I. The order was appealable; and when a chancery appeal lies, it brings the case- up for review with all matters of discretion open for consideration in the appellate court, precisely as they were in the court below.

II. The statute (Clomp. L., 1871, § 5147) prohibits a sale within one year after the filing of the bill. Whether or not this strictly requires the interval of a year between the service of subpoena and the sale, the purpose certainly was to give the mortgagor time within which to make payment and save the lands; and that purpose is not served by permitting a sale within six months after he first has notice, by service of subpoena or otherwise, that a bill has been filed, even though the bill may in fact have been on file, but inoperative, for six months previous. The court has a discretionary power in such a case, at least, to postpone the sale until the expiration of a year from the service of the subpoena; and such a discretion ought to liavebeen exercised in this case.

III. Good practice requires that a defendant who has ap pearod in the cause should have such notice of the entry of the decree as will afford him an opportunity to attend and be heard upon the settlement thereof.

Order of confirmation reversed, with costs, and re-sale (Ordered.