54 N.J. Eq. 447 | New York Court of Chancery | 1896
The petition admits that the Bethlehem Iron Company was duly proceeded against as a non-resident defendant. It does not deny that it had timely knowledge of the notice published and mailed which made known to it the character of the suit and its concern in the result thereof.
It is true, in an affidavit annexed to the petition, the counsel of the defendant company says that he knew of another litigation
Nor does the petition aver that the Bethlehem Iron Company has a meritorious defence against the complainant’s claim which the final decree supports.
The application is put upon the facts that the Bethlehem Iron Company has an important interest in the suit; that it is a nonresident defendant; that it was not served with process within
The section of the Chancery act referred to, stripped of verbiage and matter not pertinent to this inquiry, provides that where a decree shall be made against an absent defendant the chancellor “may,” before issuing process to compel performance of the decree, “if he deems it equitable so to do,” require the complainant to give a bond, with such security and in such sum as he may direct, conditioned for restitution of property which may be unjustly taken from the absent defendant, and that if such security shall not be given, execution for the performance of the decree shall not issue, but the estate and effects of the absent defendant may be sequestered and remain under control of the chancellor; and if the absent defendant shall, within six months after notice in writing of the decree is given to him, or within three years after the decree, if no such notice be given, “ petition the chancellor touching the matter of such decree, and pay or secure to be paid such costs as the chancellor shall think reasonable to order and direct,” he “ may be permitted to appear and answer the complainant’s bill, and thereupon such proceedings shall be had as if such absent defendant had appeared in due season and no decree had been made; ” or he may, within the times aforesaid, file his bill to recover back the excess over the complainant’s rightful recovery; but if he shall not present his petition or file his bill within the times aforesaid, the decree shall be deemed and adjudged to be confirmed as of the time of making it.
The scheme of this section of the statute obviously is to declare and, to some extent, regulate and limit the power of the chancellor not only to withhold execution in the enforcement of the decree against an absent defendant, but also to let the absent
The seventy-third section of the Chancery act is of the same general character as the twenty-first section. It has for its object the protection of absent defendants from error in mortgage foreclosure cases. Its provision is, that after decree and. before sale of the mortgaged premises under execution, an absent defendant may enter his appearance and apply to the court for a writ of supersedeas to stay proceedings on the execution.
In Horner v. Corning, 1 Stew. Eq. 254, the court of errors and appeals held that this section of the statute is not mandatory as to the issuance of the writ of supersedeas, but is declaratory of a power which was inherent in the court when the section was enacted. “The act,” said Mr. Justice Dalrimple, in writing the opinion of the court, “simply declares it lawful for the court, under the circumstances named, to issue the supersedeas. Whether it shall or not issue depends not on the will of the party, but on the discretion of the court, to be exercised in view of all' the circumstances of the case. I think a party who invokes the aid of the court under this statute should show, at least, surprise and merits.”
If authority be needed to assure us that the proper interpretation of the twenty-first section is, as its language plainly indicates, that all indulgence to the absent defendant is left within the discretion of the chancellor, the case cited furnishes it.
I think that in this case it was incumbent upon the Bethlehem Iron Company to unequivocally allege and establish that it was never served with notice of the suit in the manner prescribed by the eighteenth section of the Chancery act, so that it actually received the notice of the suit, or to allege surprise in some other form which will justly call for this court’s interference in its behalf, and also that the defence it proposes to interpose is possessed of merit. The propriety of requiring the defendant to show surprise in this case is emphasized by the fact that for months the complainant and Ryon were engaged in trying the very issues upon which the claim of the Bethlehem Iron Company rests. It should have clearly appeared that during such litigation the
In the ease of Consolidated Electric Storage Co. v. Atlantic Trust Co., 5 Dick. Ch. Rep. 93, question as to the right of a non-resident defendant, under the twenty-first section of the Chancery act, to appear and answer, regardless of whether he has or has not a ground of defence, was presented to 'Vice-Chancellor Van Fleet but was not decided, because, there, so strong a meritorious defence was shown against the holding of a decree made- upon ex parte proofs, and at trifling expense to the complainant, that the vice-chancellor felt constrained to permit it to be set up, even though it appeared that the defendant had notice of the suit and opportunity to defend it. I apprehend, however, that he would have attached some importance to the failure to defend after notice if, during the delay, the complainant had been put to a long and costly litigation with other parties upon the very issues the proposed defence must raise.
A general expression of the vice-chancellor at the end of his opinion indicates that he was at least inclined to the opinion that importance was to be attached to the words of the twenty-first section, that the absent defendant could petition the chancellor “ touching the matter of such decree,” as restricting that which was to be considered by the chancellor upon the application to the substance adjudicated by the decree, excluding the question as to surprise. I take a broader view of this language. I think that by use of the words “ matter of such decree,” the legislative intent was to comprehend everything that might justly be considered to sustain or defeat the decree.
I think that the case presented by the petition is insufficient to justify my granting the prayer of the petition, and therefore, no desire to amend having been expressed, I will deny the application and discharge the restraint upon the sale.