30 N.J. Eq. 231 | New York Court of Chancery | 1878
This is an application to open .a final decree on the ground , of surprise and merits. A perfect case of surprise is shown. The counsel of the defendants did not appear at the hearing, nor did he have the defendants’ proofs presented to the court. They had a right to believe that he would, without special instruction or direction, make a proper presentation of their defence. His failure to do so was a breach of duty that they were not bound to anticipate or guard against. His misconduct was a surprise, and if they have a meritorious defence, they are entitled to the benefit of it. The court is bound to hear them.
The case, was brought to hearing regularly. The proofs on the part of the defendants had been fully taken, at least all that their counsel thought it advisable to take. They say, by their petition, that they had several other witnesses besides those' examined, by whom they could have proved the matters alleged in their answer, but were advised by their counsel that they did not need further proofs. There is nothing to show that the advice was not proper under the circumstances. There is no charge of collusion between the complainant and the defendants’ counsel. The only
Do the proofs show a good defence ? The defendants’ proofs are now before the court. No further evidence has been taken. If, upon a full consideration of all the evidence, it now appears that, had the defendants’ proof been before the court when the case was heard originally, the same judgment would have been pronounced, then it is obvious that no injustice has been done, and the decree should stand. The court should not go through the idle ceremony of opening the decree merely to give the defendants an opportunity to be heard, if it is now plain that, at the end of the delay that course will cause, precisely the same result must be reached.
The complainant is a judgment creditor of one of the defendants, and seeks, by this suit, to have his judgment charged upon certain lands held by the other, on the ground that the title was put in the other by the judgment debtor, for tbe purpose of defrauding his creditors. The defendants are husband and wife. The proofs produced by the complainant, standing unopposed, make a perfect case. They put in the mouths of both defendants admissions that the lands in question were conveyed to the wife to save
The husband in this case made the bargain for the lands, raised the money and paid it, and did every other act that
But it is insisted, even if it be found that the lands in question were paid for with the husband’s money, the complainant is not in a position to assail the wife’s title successfully, his judgment being, founded on a debt incurred after she acquired title. The complainant became a creditor of the husband in 1869. That debt, he swears, remains unpaid, and in this he is uncontradicted. His judgment is founded on a debt contracted in 1871. The deeds to the wife were made in 1870. According to the complainant’s proofs the
The main facts on which the complainant’s right to relief rests are not disproved, or their force impaired in any material point by the defendants’ proofs. Their defence is without merit; the order to show cause must therefore be discharged, with costs.