Ireland v. Woolman

15 Mich. 253 | Mich. | 1867

Cooley J.

Several objections are taken by the appellants to the decree in this cause, but none of them, we think, well founded.

1. It is objected that no affidavit of the regularity of the proceedings as to the defaulted defendants was presented at the hearing. It is always proper that such an affidavit should be presented, and the rule — Chancery Rule, 92 — requires that either in that form, or some other, evidence should be furnished of the regularity of the steps to take the bill as confessed; but this is for the convenience of the judge only, and while the affidavit could not make the proceedings regular if, in fact, they were not, neither does its absence invalidate them, if correct.

2. The default as to Woolman is claimed to be irregular. An inspection of the record furnishes no ground for this objection except that the recital in the order for default states that he was personally served with subpoena, whereas, in fact, he was brought in by publication as a non-resident. But this error was merely clerical, and as no recital of the kind was essential to the validity of the order, the mis-recital must be treated as surplusage..-

3. It is said that the decree for costs against Bilderback was erroneous. Bilderback was a subsequent purchaser from the mortgagor. The mortgagor himself was a nonresident, and did not appear; but Bilderback contested the amount due upon the mortgage, and it was clearly proper that the court should decree costs against him. if the mortgaged premises proved insufficient.

4. The decree directs the various parcels of land covered by the mortgage to be sold in the inverse order of their alienation by the mortgagor, whereas it is claimed that one of them is taken out of the operation of the general rule which would require this order of sale, by being specially charged with the payment of the mortgage by the mortgagor’s deed conveying it. Without inquiring whether there is anything in the testimony to show this fact, it is sufficient to say that the point is not in any way presented by answer, and wap not, therefore, properly before the court below.

5. The decree is objected to, because it directs notice of sale to be given “according to the course and practice of the court;” and it is said that neither the statute nor the rules prescribe the length of such notice. The practice in this state has always been to give-notice for the same time and in the same manner as required by sheriffs before sale of real estate on execution; and this is so well understood, that it is not uncommon for decrees to be made in this form. We are not disposed to question the validity of such decrees.

6. It is lastly objected that no reference was made to a Circuit Court Commissioner to compute the amount due on -the mortgage, but tbe Circuit Judge computed it himself. A reference in such case is for the relief of the Circuit Judge, and he can dispense with it if he see fit.

The decree must be affirmed, with eosts against the appellants.

Christiancy and Campbell JJ. concurred. Martin Ch. J. did not sit.