Hurtt v. Crane

36 Md. 29, 1872 Md. LEXIS 58

• Court: Court of Appeals of Maryland
• Decided: May 9, 1872
• Status: Published

Opinion

Grason, J.,

delivered the opinion of the Court.

The motion to dismiss this appeal having been withdrawn, the question before us is whether the Court below erred in passing the decree appealed from. As the appellant had filed his answer to the bill of complaint before the final decree was passed, he was entitled to take evidence, upon terms to be prescribed by the Court below, to make out his defence, and it was error to deprive him of this right. But in addition to this the cause was not ready for final hearing, because Mrs. Blackiston, who had been made a party defendant, and who had a potential right of dower in her husband’s interest in the mortgaged premises, had not been summoned and was not before the Court. When there are several defendants, the cause cannot be heard until it is ready against all of them. Alex. Chan. Pract., 113. There is also error in the decree, for the reason that it does not settle the whole case. The object of the bill was a foreclosure of a mortgage executed to the appellee by the appellant and his wife and David C, Blackiston and his wife, while the decree directs the sale of the interest of the appellant alone. The decree should have determined the rights and liabilities of all the parties to the cause. Contee vs. Dawson, 2 Bland, 292.

(Decided 9th May, 1872.)

The decree pro confesso also was inadvertantly passed as against Mrs. Blackiston, as she had never been summoned and was not in default.

The decree appealed from will be reversed and the cause remanded for further proceedings.

Decree reversed and cause remanded.