Hart v. Linsday

1 Walk. Ch. 72

• Court: Michigan Court of Chancery
• Decided: October 15, 1842
• Status: Published

Opinion

The Chancellor.

After a decree has been entered on a bill regularly taken as confessed, the question of opening it, to let in a defence on the merits, should be brought before the Court by petition. In Wooster v. Woodhull, 1 J. C. R. 541; Parker v. Grant, Id. 630; Lansing v. McPherson, 3 J. C. R. 424, and Russell v. Waite, ante 31, the application was by petition. And the answer the defendant proposes to put in should accompany the petition, that the Court may see its materiality, and that it is a full and sufficient answer. A decree regularly entered will not be opened, unless under special circumstances. A stronger case must be made out than is ordinarily required to vacate an order for taking the bill as confessed, before a decree has been entered upon it. This may be done on motion or petition. But, to enable the Court to judge of the merits of the application, the defendant must set forth the nature of his defence, in the affidavit or petition, or produce the sworn answer he proposes to file in the case. Stockton v. Williams, 1 Har. Ch. R. 241.

The defendant has not satisfactorily accounted for his delay in not making his application sooner. From his own statement he appears to have been guilty of gross negligence. The bill was filed June 21st, 1839, the subpoena served the same month, and the decree entered September 12th, 1S40: Soon after the subpoena was served, he swears he employed, as he supposed, Messrs. Witherell & Buel to attend to the suit for him, and that he heard nothing more of it until August, 1841, — two years and more, — when he learned the complainant had obtained a decree against him. During this time he makes no inquiries of his Solicitors as to the progress of the suit, nor does he so much as call on them, or give himself any trouble whatever about it. When he is informed a decree has been taken against him by default, what does he do ? He does not go to his Solicitors to learn the cause, but applies to complainant to give him until the following June to pay the money, and enters into an agreement for that purpose. He then waits until the time has expired, or is about to expire, before he makes his application to this Court. To open the decree under such circumstances, would be establishing a most dangerous precedent. The agreement for further time is, of itself, a sufficient reason why this part of the defendant’s motion should be denied.

The costs were taxed September 14th, 1840. The reasons stated for refusing to open the decree apply to a re-taxation of the costs. They are a part of the decree and were paid in part, under the agreement of the parties. In Morris v. Morris, 1 J. C. R. 44, the Court refused to order a retaxation of costs after two terms had intervened, on the ground the application came too late. In the present case, nearly two years have elapsed since the costs were taxed, and a year since they were paid by the defendant. In Stockholm v. Robbins, 24 Wend. R. 109, and the cases there cited, the question of costs was between attorney and client, and not between the parties to the suit. The Master should not have taxed the costs without the affidavit required by the ninety-third rule of the Court, but it is too late now to object to the irregularity.

The costs of selling the mortgaged premises were taxed by the Master at $42.34. Of this amount, $20 were for printing the notice of sale, and $22.34 Master’s fees. The sale was adjourned five several times, at the request of complainant, and on account of the illness of the Master'. The expense of adjournments should not be borne by the defendant, unless made at his request. The Master charges a commission of $10. I think this too high. Commissions on mortgage sales should be one per cent on the first $500, and one half of one per cent on the balance, the-whole commissions in no case to exceed $10. Most of the other items were charged in the bill of costs taxed in September, 1840, and had been paid by the defendant, who should not have been charged with them a second time. The defendant may have ah order for the retaxation of these costs, and, on ascertaining the amount overpaid, a further order requiring complainant to repay the same to defendant, with the $35 balance of the purchase money still in his hands, with interest on both sums from the day of sale, and, on the same being paid to the defendant, or to the Register of this Court for him, the Master’s report of sale to stand confirmed.