Jenny v. O'Flynn

5 Mich. 215

Opinion

Campbell J. :

The bill was filed by complainants, to foreclose a mortgage given by defendant to them as administrators. Defendant demurred generally. Notice of hearing was served by mail, from Mt. Clemens, four days before the day of hearing, being a less time than the Rules required. On the 9th of April, 1857, upon proof of this notice, an order was made, overruling the demurrer as frivolous, and ordering a reference to a notary public, on account of the inability of the commissioner to act. On the next day, without any notice to the defendant, the notary made a report, and a final decree was entered. From this, the defendant appealed.

We think the decree should be reversed. The statute

* contemplates that a party who has appeared shall be entitled to notice of all proceedings. Where the Rules, as in this case, provide the-period of notice, such notice should in all cases be given. If the defendant here had been properly notified, he might, upon the hearing, have made a sufficient showing to entitle him to put in his answer. It does not follow, even where a demurrer is considered frivolous by the Court, that a showing of good faith and merits will not entitle a party to put in his defense. A court of equity will require diligence, but it does not favor the suppression of the truth. The Court erred in making any order whatever, upon the defective notice which was given.

The defendant was also entitled to notice of the hearing on the reference, that he might require the production of the instruments sued upon, and show any defense he might have had by way of payment or satisfaction of the claim.

The whole proceedings are characterized by a haste which was in violation of the defendant’s rights, and can not be permitted to take them away.

It is unnecessary to pass upon the question of the authority of the notary to undertake the reference, as the defects in the proceedings go behind his appointment, and vitiate the order overruling the demurrer.

A decree must be entered, overruling the decree below, and vacating and annulling the order or decree which overruled the demurrer, and setting aside all the proceedings subsequent thereto, and reinstating the cause at issue upon demurrer, and remanding the cause to the Circuit Court for the county of Macomb, to be further proceeded in as law and justice may require.

The other Justices concurred.

Decree reversed, and cause remanded.

Sec. 3500 of Compiled Laws.