Kohler v. Kohler

New York Court of Chancery

Kohler v. Kohler

2 Edw. Ch. 69

New York Court of Chancery·Decided April 28, 1833·Published·Cited by 4 cases

Opinion

The Vice-Chancellor:

Several objections are raised by the purchaser of the property sold in this suit; but it may be unnecessary to refer to more than one of them. The' decree in the cause appears to have bees obtained without any proceedings having been taken against the infant defendant »• William F. Kohler; no guardian ad litem was appointed, no appearance was in any way entered, nor was the bill taken as confessed against him. The irregularity is attempted to be obviated by an offer of a release of all interest by William F. Kohler, who, it is said, has now come of age. But this is, at present, but a suggestion from counsel; and, indeed, even ’though the proposition came in a tangible shape» still it comes back to the sufficiency of the decree-—as to other parties.

[70]*70The 187th rule guides the clerk of this court in the enrolment of decrees. He must mention the defendants who have appeared and answered and those who have suffered the bill to be taken as confessed against them, as well as those against whom the same is taken as confessed for want of appearance, distinguishing such as neglected to appear after a personal service of process from those who are proceeded against as absentees. And, amongst other things-, all such proceedings in the cause must be recited as may be necessary to a correct understanding of the decree. Now, how can the clerk make up the enrolment of this decree ? The officer himself would necessarily find out the error; and it is of such a nature as to allow the decree to be set aside» if impeached for error.

The purchaser, as to many parties, must take his title through the decree; and, consequently, a mere release by William F. Kohler will not make good the enrolment.

The purchaser must be discharged; and he is entitled to his costs. There is no fund in court out of which they can be paid; but the practice is to direct the complainants to pay them in the first instance. Let this be done here; and the parties adverse to the purchaser must adjust the amount amongst themselves.

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The Vice-Chancellor:

Several objections are raised by the purchaser of the property sold in this suit; but it may be unnecessary to refer to more than one of them. The' decree in the cause appears to have bees obtained without any proceedings having been taken against the infant defendant »• William F. Kohler; no guardian ad litem was appointed, no appearance was in any way entered, nor was the bill taken as confessed against him. The irregularity is attempted to be obviated by an offer of a release of all interest by William F. Kohler, who, it is said, has now come of age. But this is, at present, but a suggestion from counsel; and, indeed, even ’though the proposition came in a tangible shape» still it comes back to the sufficiency of the decree-—as to other parties.

[70]*70The 187th rule guides the clerk of this court in the enrolment of decrees. He must mention the defendants who have appeared and answered and those who have suffered the bill to be taken as confessed against them, as well as those against whom the same is taken as confessed for want of appearance, distinguishing such as neglected to appear after a personal service of process from those who are proceeded against as absentees. And, amongst other things-, all such proceedings in the cause must be recited as may be necessary to a correct understanding of the decree. Now, how can the clerk make up the enrolment of this decree ? The officer himself would necessarily find out the error; and it is of such a nature as to allow the decree to be set aside» if impeached for error.

The purchaser, as to many parties, must take his title through the decree; and, consequently, a mere release by William F. Kohler will not make good the enrolment.

The purchaser must be discharged; and he is entitled to his costs. There is no fund in court out of which they can be paid; but the practice is to direct the complainants to pay them in the first instance. Let this be done here; and the parties adverse to the purchaser must adjust the amount amongst themselves.

Kohler v. Kohler, 2 Edw. Ch. 69 (N.Y. 1833).

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