171 Mich. 69 | Mich. | 1912
Two of the three parties defendant did not appear. Defendant Jochen appeared, demanded and received a copy of the bill, filed and served a plea. Complainant replied. Coming on to be heard, and being argued by counsel, the plea was overruled, the court filing a written opinion in which defendant was given 15 days to answer. This was July 9, 1909. No order overruling the plea was made or entered. Defendant’s default for want of answer was entered July 37, 1909,'in support of which complainant made and filed his affidavit. Defendant was served with no notice of the entry of the order. Thereafter, on December 4, 1909, defendant moved to vacate the order pro confesso and for leave to answer, making profert of the answer proposed to be filed. The answer was verified, and the benefit of a cross-bill was claimed therein. The motion coming on to be heard, it was overruled. Later, on April 7,1911, defendant moved to vacate the order pro confesso upon the ground, not before suggested, that no order had been entered overruling his plea, for which reason the time allowed for filing an answer had not elapsed. With this motion defendant filed and served an answer. This motion was overruled. Thereafter complainant proceeded to take proofs in open court, and the court made and entered a decree as of March 33, 1911. The proof introduced consisted of a sheriff’s deed, dated February 18,1910, conveying certain premises sold upon fieri facias to complainant. Defend
The contentions of the appellant based upon the action of the court in overruling the plea will not be considered. The court had jurisdiction of the subject-matter and of defendant, appellant.
It was irregular to proceed with the cause until an order overruling the plea had been entered. Either party might have prepared the order and caused it to be entered. It was irregular to enter an order pro confesso without giving notice thereof. After an appearance, a defendant is entitled to notice of all future proceedings in the cause. Chancery Rule 5. The irregularities were waived when defendant moved, for other reasons, to vacate the order pro confesso, and for leave to answer. The court exercised its discretion, and its action was submitted to. No further proceedings were taken for one year and four months. To understand other contentions based upon the bill, the testimony, and the decree, it will be necessary to refer to the record.
The case made by the bill may be stated as follows: Complainant recovered a judgment against defendant Jochen, in the circuit court for the county of Saginaw for $334.28 and costs, February 6, 1906. The judgment is unreversed and unsatisfied. In 1901 defendant agreed, in writing, to purchase certain lands from Allan Sheldon for $28,275, and according to the contract, which was recorded, he paid $2,000 of the purchase price. He was obligated to pay thereafter $1,000 annually and interest and taxes on the land until the price was paid. In 1907 Jochen entered into an agreement to sell to the defendant Woodenware Company all timber growing on the said land eight inches in diameter, and the purchaser agreed to pay the amount then due on the contract with Allan Sheldon, then computed to be $8,159.76, and taxes due on the land and interest due on the said contract, and to continue to make payments on the said contract, as they be
The decree recites that complainant was the highest bidder at the execution sale, that no .redemption was made, and finds that complainant “is now the sole and absolute owner,” subject to the rights of Sheldon and the Wooden ware Company, of all of the interests of said Jochen in said lands, and that all of Jochen’s rights in the lands are terminated. It is therefore decreed that the two defendants other than Jochen be restrained from paying Jochen any money for coal or timber taken from the land, that Jochen be restrained from selling or transferring any interest in the land or in the coal or timber, and from trespassing. It is said by complainant that the bill was filed in compliance with the provisions of 3 Comp. Laws, § 9167, which, while subjecting equitable interests in land to the payment of debts and providing for the levy of executions thereon and for sales of such interests, contains a proviso, a portion of which reads:
“ That in case of a levy upon the equitable interest of a judgment debtor, the judgment creditor may, before sale, institute proceedings in aid of said execution, to ascertain and determine the rights and equities of said judgment debtor in the premises so levied upon, and that in case of a sale of said premises, without having ascertained and determined the interest of said judgment debtor in the premises so levied upon and sold, he shall within one year institute proceedings to ascertain and determine the same, and to settle the rights of the parties in interest therein.”
But this bill is not so framed as to discover and settle the rights of the parties in interest in and to the land. The theory of the statute proceeding is that the rights and equities of the judgment debtor in the premises levied
Under the circumstances, we are inclined, if complainant desires that course to be pursued, to set aside the decree and remand the record with leave to amend the bill, or with leave to present to the court below facts and circumstances tending to sustain a right to the relief prayed for in the original bill. Unless complainant shall within 30 days prepare and serve a decree pursuant to this suggestion, a decree may be taken reversing the decree of the court below and dismissing the bill of complaint. In any event, appellant will recover costs of this appeal.