Scudder v. Voorhis

1 Barb. 55

Opinion

Edmonds, J.

The motion is granted. The plaintiffs, by-amending their bill, waived the default. This must be so, or the case might assume this anomaly: that the defendant’s de-' fault might be taken on the original bill, and his answer be received on the bill as amended.

Footnotes

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(a)

In The Bank of Utica v. Finch and others, (1 Barb. Ch. Rep. 75,) the chancellor decided that where an original bill is taken as confessed, and an amended bill is subsequently filed, making other persons parties, the order pro confesso is thereby opened. By the English practice a new subpeena is issued upon filing an amended bill, requiring the defendant to appear and answer the same. But here no new subpoena is necessary, except to bring in now defendants who are made parties by the amendment. (Lawrence v. Bolton, 3 Paige, 294.) In Cowman v. Lovett, (10 Paige, 561,) the chancellor says the practice does not appear to be settled as to the necessity of a new order to answer the amended bill where the amendments arc made before any answer, plea or demurrer to the original bill has been filed. He was inclined to think, however, that the proper practice in such cases is to enter a new order to answer the bill as amended; giving the same time to answer which the defendant originally had, in conformity to the provisions on that subject contained in the 45th rule ofthe court of chancery. And he held that a notice of such order to answer the bill as amended should be served on the defendant’s solicitor.

There does not appear to be any reported decision defining the practice upon an amended bill, where the defendant has not appeared to the original bill. Under the former rules of the court of chancery, where the subpoena was personally served, if the defendant did not appear, the complainant entered an order that the defendant appear and answer the bill within the time prescribed by the rule, or that the bill be taken as confessed. And where the bill was amended, the complainant entered a similar order for him to appear and answer the amended bill. But as the 23d rule of the court of chancery as adopted in 1837, and the 13th rule of the new supreme court, in equity, allow the bill to be taken as confessed, for want of appearance, without any previous order to appear and answer, the proper course seems to be for the complainant, after the bill is amended, to wait the twenty days allowed to the defendant for appearing, and if he does not enter his appearance within that time, then to file an affidavit of the fact, and enter an order to take the amppcled bill as confessed for want of an appearance.