Whipple v. Brown

1 Harr. Ch. 436

• Court: Michigan Court of Chancery
• Decided: July 1, 1841
• Status: Published

Opinion

The Chancellor.

The return of a master, charged with the execution of an order of this court is a sufficient foundation for a rule to show cause, that rule having been taken exparle,it is competent now for the respondent to show cause against granting the attachment.

The defendant swears positively that the notice to appear before the master was served only some eighteen hours before the time he was required to appear, and he specifies the time of service, and when he was required to appear. The master in his return refers to the affidavit of Mr. Holbrook, as to the mode of service.

On looking at this affidavit of service, it is perceived that he does not specify when or how it was served, but that it was the usual time pursuant to the seventy-second rule. It shows his conclusion 5 the facts should he stated in order to enable the court to judge.

It strikes me that a copy of the notice should have been returned with the proof of service endorsed, Brown also swears that noother notice has been served upon him in the cause, except the summons of the master, for the purpose of appointing a receiver, which was obeyed.

This proceeding I think has been irregular, and the court is bound under this proceeding to notice it.

The notice and return under the rule to show cause, is also irregular. The notice to Brown under this rule is to appear before the master, in four days, &c. The notice as returned, endorsed upon the order is, that Jeremiah VanRenselaer jr., a master of this court, had the execution of the order referred to.

The return upon the order is made by Mr. Dalton, that the respondent did not appear before him, pursuant to the order. The notice did not require the respondent to appear before him, but before Mr. Van Rensselaer-, and non constat, but that he has appeared according to notice.

While on the one hand there is no escape from the proceedings under this class of bills, when the proceedings are regular, on the other, such is the severity of its operation, it would be hazardous to the rights of the parties defendant, if the courts were to relax the strictness of the proceedings, and attach a party when in fact as appears here, the notice has been clearly irregular.

Motion denied.