Wrigley v. Jolley

36 N.J. Eq. 168

• Court: New Jersey Court of Chancery
• Decided: October 15, 1882
• Status: Published

Opinion

The Chancellor.

This is an application to set aside a sheriff’s sale and open the decree, to give the defendant the benefit of his answer. The answer was not filed within the time limited by the order of publication. That time expired June 12th. On that day the defendant’s solicitor obtained, ex parte and without notice, an order for five days’ further time. This order was never served on the complainant’s solicitor. The answer was filed on the 16th of June. On the 24th of that month the complainant’s solicitor, who was not aware that any answer had been filed, took a decree pro eonfesso, and on the 29fch a final decree. By the answer the defendant, who is the mortgagor, sets up the defence of usury— the taking of a premium of $45 on the loan of $1,500. It was the duty of the defendant’s solicitor, on taking the order for further time to answer, to serve a copy of it, without delay, on the complainant’s solicitor. As before stated, he did not serve it .at all, and the complainant’s solicitor never had any notice of it. The decree pro eonfesso was regular. Emery v. Downing, 2 Beas. 59. The defendant’s solicitor seems to have given the cause no attention whatever, after the filing of the answer. He was not aware of the subsequent proceedings until the 15th of October, when he was informed that the sale had taken place, and the notice of this motion was not given until a month after that time. The purchaser of the property swears he has expended on it, for necessary repairs and taxes, over $100, since he bought it at the sheriff’s sale. Under the circumstances, it would not be a proper exercise of discretion to set aside the sale and open the decree. The motion will be denied.