Jermain v. Langdon

8 Paige Ch. 41 | New York Court of Chancery | 1839

The Chancellor.

It is not necessary to consider the question at this time, which was raised on the argument, whether a proceeding against a party as a non-resident, who has a fixed and notorious domicil in this state at the time, is absolutely void as against him, for want of jurisdiction ; where the order for publication has been obtained upon a proper affidavit showing that the defendant was a non-resident at that time. For if this proceeding as to Langdon is void for want of jurisdiction, he cannot be injured by a sale under this decree; as his rights in that case will be the same as if no such decree had been made. My present impression, however, is that the proceedings and decree would not be void for want of jurisdiction, but would be merely voidable for the irregularity. There can be no doubt, however, that it is clearly irregular to proceed against a party, as an absentee, who has a fixed and notorious residence in the state; and who is neither absent therefrom nor concealed so that process cannot be served on him. In such a case, therefore, if the defendant applies for leave to come in and defend the suit, the first opportunity he has after he is informed of the proceeding against him and before an actual sale to a bona fide purchaser under the decree, it will be a matter of course to permit him to come in and defend, without charging him with any costs. But in a case of mere unintentional irregularity, the party who wishes to take advantage of it must apply the first opportunity ; unless he can satisfy the court that he has been deprived of some substantial right, either legal or equitable, in consequence of such irregularity. Here it is not alleged, in the papers upon which this application is founded, that the defendants have any defence whatever to the suit. And from the letters which are before me I presume the object of the defendants is mere delay. The motion to set aside the order to take the bill as confessed must therefore be denied with costs.

The defendants, however, if they have any defence in fact, are, by the statute, permitted to make it at any time before the premises are actually sold under the decree ; in every case in which they are proceeded against as absentees. (2 R. S. 188, § 137.) The only restriction upon the right is the payment of such costs as may by the court be deemed reasonable. And as the complainant proceeded against these parties as absentees, it does not lie with him to object that they were not so in point of fact. Where an absentee, however, comes in to stay the sale, under this provision of the revised statutes, it is not absolutely necessary that the decree should be opened, or vacated, before it is ascertained that the defendant has a valid defence. The court therefore may permit the defendant to put in an answer, where he applies after a decree has been entered, and may at the same time allow the decree to stand until the hearing and determination of the question as to the validity of the defence set up in the answer. Where the defendant is thus permitted to appear and put in his answer, after decree, the court upon the final hearing may either vacate the decree entirely, or may affirm or modify it as may be just and proper ; and the sale in the meantime will be stayed.

The defendant Langdon, therefore, upon entering an appearance for himself and wife and filing a bond with the register, within twenty days, with two sufficient sureties in the penalty of $250, to be approved of by a master in the usual form, conditioned to pay to the complainant such costs as may eventually be awarded to him in this suit against these defendants, is to be at liberty, at any time within forty days after service of a copy of the bill, to put in an answer to the same for himself and wife, in the usual, form. And upon entering such appearance and filing such bond the sale of the premises under the decree is to be stayed until the further order of this court. But if they neglect to give such bond, or to put in their answer, within the time prescribed for that purpose the complainant may proceed under his decree.