Oram v. Dennison

New Jersey Court of Chancery

Oram v. Dennison

13 N.J. Eq. 438

DecidedMay 15, 1861

StatusPublished

This text of 13 N.J. Eq. 438 (Oram v. Dennison) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Oram v. Dennison, 13 N.J. Eq. 438 (N.J. Ct. App. 1861).

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Opinion

The Chancellor.

The decree' must he set aside, the defendant admitted to defend, and thirty days allowed to plead, answer, or demur. The only question relates to the allowance of costs. Where the complainant’s proceedings are strictly regular, the rule upon opening the decree is granted upon the payment of eosts. The order [439]*439of publication in this cans© is not in accordance with the rule of practice, as stated in Wetmore v. Dyer, 1 Green’s Ch. R. 386, viz. that where the defendants, all reside out of the state foreign publication is required. The rule is not uniformly enforced in practice, but is founded ira reason, and in the present case there was peculiar propriety in adopting it. The petitioner is the sote defendant, resident and doing business in the city of New York. Personal service might readily have been effected. A publication of the order in the city of New York would most probably have met the defendant’s notice. There was no probability that the- publication in a country paper which the defendant did not take would be seen or heard of by him. It is true the order of publication was signed in its present form by the Chancellor. But such formal orders, it is well known, are usually signed as drawn by the complainant’s solicitor where no question is raised as to their legality, and are always taken at the peril of the complainant. It is- proper, under the circumstances, that the costs of the decree pro confcsso should abide the event of the suit.

Order accordingly. ■

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The Chancellor.

The decree' must he set aside, the defendant admitted to defend, and thirty days allowed to plead, answer, or demur. The only question relates to the allowance of costs. Where the complainant’s proceedings are strictly regular, the rule upon opening the decree is granted upon the payment of eosts. The order [439]*439of publication in this cans© is not in accordance with the rule of practice, as stated in Wetmore v. Dyer, 1 Green’s Ch. R. 386, viz. that where the defendants, all reside out of the state foreign publication is required. The rule is not uniformly enforced in practice, but is founded ira reason, and in the present case there was peculiar propriety in adopting it. The petitioner is the sote defendant, resident and doing business in the city of New York. Personal service might readily have been effected. A publication of the order in the city of New York would most probably have met the defendant’s notice. There was no probability that the- publication in a country paper which the defendant did not take would be seen or heard of by him. It is true the order of publication was signed in its present form by the Chancellor. But such formal orders, it is well known, are usually signed as drawn by the complainant’s solicitor where no question is raised as to their legality, and are always taken at the peril of the complainant. It is- proper, under the circumstances, that the costs of the decree pro confcsso should abide the event of the suit.

Order accordingly. ■

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Bluebook (online)

13 N.J. Eq. 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oram-v-dennison-njch-1861.