Warren v. Sprague

4 Edw. Ch. 416

• Court: New York Court of Chancery
• Decided: June 13, 1844
• Status: Published

Opinion

The Vice-Chancellor :

Where a bill or answer has been died without the signature of counsel, it has been the practice to move that it be taken off the files for irregularity ; and the court will so order, unless special circumstances are shown: such, for instance, as that the pleading had been actually perused by counsel and, through inadvertence, his signature was omitted. In such a case the court will allow it to stand upon the counsel affixing his signature and payment of costs : Carey v. Hatch, 2 Edwards’s V. C. Rep. 190 ; Littlejohn v. Munn, 3 Paige’s C. R. 280.

So, the filing of the bill in this cause by the solicitor who was prosecuting the original suit in which the receiver was appointed, rendered the bill irregular; and would authorize its removal from the files. But the defendant happens to appear by the same solicitor as appeared for the defendants in the original suit; and, so, such solicitor knew that the solicitor for the original complainants was the same as the one now appearing and employed by the receiver in the present suit.

Although this appearance is not a waiver of the objection, yet I consider it is such .a step, on the part of the defendant in the receiver’s suit, as may well authorize the court to let the bill remain on the files, upon the receiver’s substituting another solicitor who has no concern with the original parties and upon payment of the costs of this motion to be taxed. Order accordingly.

(a)

This order was affirmed, on appeal, August 27,1844. But, as the chancellor took different ground from the vice-chancellor, it may he well to give the views of the former: “ The only error in the order appealed from is that the application to take the bills off the files was not denied with costs, instead of requiring the complainant to appear by a new solicitor and to pay the costs of the defendant upon the motion. But that was an error in favor of the appellant ; and of which he has, of course, no right to complain by appeal. The rule which prohibits a receiver from employing the solicitor for either of the parties to the suit in which he is appointed receiver is intended to protect the rights of those parties. And if they have no objection, the receiver may employ the solicitor of either to aid him in the discharge of his trust. A mere stranger to that suit, therefore, has no right to object that the receiver has employed the solicitor of one of the patties in the original suit to institute a new suit against such stranger. The proceedings of the complainant in filing this bill were, therefore, strictly regular, so far as regards the defendant therein; and he had no right to raise the obj ection that the solicitor employed by the receiver to file the bill against him vas solicitor for the complainant in the suit in which the receiver was appointed.

“ The order appealed from, not being erroneous as to the appellant, must be affirmed, with costs.”