Allen v. Taylor

3 N.J. Eq. 435 | New York Court of Chancery | 1836

The Chancellor.

Some time since, the complainant filed a simple injunction bill to prevent the further commission of waste on mortgaged premises. The defendants answered the bill, and upon the coming in of the answer the injunction was ordered to fee dissolved. The order was not signed, nor was any application made to dismiss the bill. The mortgage money having become due, the complainant, in October, eighteen hundred and thirty-five, filed a supplemental bill, setting out that fact, and praying a decree for a foreclosure and sale of the mortgaged premises. To this bill there is a demurrer.

In my opinion this demurrer is not well taken. The complainant is .regularly in .court by the original bill, which is filed on the same mortgage. That bill sets out the making and executing of the mortgage, the amount for which it was given., and when due and payable, and shows that the mortgage money was not then due. It charges the commission of waste, and. prays an injunction. The injunction was. granted. The defendants answered the bill, denying the waste., but admitting the mortgage as charged. -On the coming in of the answer the injunction was ordered to he dissolved. The complainant filed a replication in -season, and put the cause at issue. At this time, ■the mortgage money having become due, the complainant filed a supplemental bill; setting out by way of supplement, the fact that the money had become due, and praying additional relief, viz. that the equity of redemption should be foreclosed, and the .mortgaged premises sold.

I thip.k this may be done, consistently with the principles and practice applicable to bills of this character. A strictly supplemental bill is always founded on facts that have occurred since the filing of the bill. These may be necessary to aid the complainant in obtaining the relief sought, or in obtaining new or additional relief. Here the party seeks additional relief, and if all the parties are already in court, upon the same subject matter, I see no propriety in turning them round for the purpose of bringing a second suit. It is laid down as a rule in Candler v. Pettit et al., 1 Paige, 169, that if the complainant’s original bill is sufficient to entitle him to one kind of relief, and facts subsequently occur which entitle him to other or more extensive relief, lie may have such relief by setting out the new matter in the form of a supplemental bill.

It may be that this principle is stated too broadly, but I think it may properly be applied to this case. It is said in Eager v. Price et al., 2 Paige, 333, that the court will not permit a party to file two original bills, and carry on two suits at the same time against the defendant to satisfy the same debt. The expense of an original bill is much greater than of a supplemental bill, and the latter .should be used whenever it can equally subserve the purposes of justice. In this case tbe party seeks two kinds of relief. They are different in character, but both grow out of the same instrument, the mortgage, and spring from the relation of mortgagor and mortgagee. They might have been asked for in one bill, if sufficient facts had existed at the filing of the original bill to warrant it; but that not being the case, it was necessary for the complainant to ask such relief as his case would warrant. Subsequent events have entitled him to more extensive and effectual aid, and I see nothing to prevent his obtaining it in the usual way by bill of supplement.

The new matters charged not affeeting the rights or interests of Dobson, who is a mere formal party to the original bill, it was aot necessary to make him a party to the supplemental bill.

While on this subject, I would remark, that this bill appears to have been filed without leave first obtained of the court. This is irregular. An application for leave should always be made. No notice is necessary, unless the court, in a case of doubt, shall direct it to be given. No objection having been taken to the regularity of the proceedings on this ground, it will be considered as waived by the voluntary appearance of the defendants, and the demurrer."

Let the demurrer be overruled.