Nesmeth v. Halsted

11 Paige Ch. 647 | New York Court of Chancery | 1845

The Chancellor.

It was undoubtedly irregular to serve the subpoena, upon the defendant, without at the same time serving a copy of the 191st rule of the court. And if the defendant had applied to the court the first opportunity, after the time allowed for his appearance, to set aside the service of the sub-' poena and all subsequent proceedings, for irregularity, his application should have been granted, with costs. The object of that part of the rule which requires a copy thereof to be served with the subpoena, was to apprize the defendant of his rights.- and duties; and also to save him the useless expense of employing a solicitor, where he is willing to make a voluntary disclosure and surrender of his property, upon a creditor’s Ipffix without further litigation. Serving a copy of the rule, after- the defendant has been subjected to the expense of employing- a solicitor, will not, therefore, obviate the irregularity, and prevent the granting of an order to set aside the irregular proceedings. The defendant cannot, however, avail himself of such an irregularity as an answer to an application for the appointment of a receiver. But he must resort to a cross motion, on his part, founded upon an affidavit of the irregularity, and due notice of. such motion to the complainant’s solicitor. And the application should be made the first opportunity after the defendant’s appearance has been entered};

The counsel for the appellant is also under a mistake in supposing that the complainants were bound to wait twenty days, after the appearance of the defendant was entered, before they were authorized to givé notice of the applibatioii for a receiver. The defendant has twenty days, after the entry of his dppearance, to givé the written consent, under the 191st rule. And if he gives that Consent within the twenty days; he cannot be compelled fo answer the bill, although the complaiiiant, within the twenty 'days, has applied for and obtained the usiial order for the appointment of a receiver. The only diffefehce to the complainant, -Where he applies within the twenty days; will be that if the consent is given after he has obtained the ushal order in such cases; he will either be obliged to abandon that order and to procure á new one, founded upon such consent, or he will lose the benefit of a discovery; except so far as the defendant is bound to answer on oath before the master; as to the property which he theh possesses and which he is directed tb deliver over to the receiver. The order to appoint a receiver Was ther<W fore properly granted in this case. But as the order difects the 'defendant to make a much more extensive discovery than the complainants were entitled to where the defendant had hot given a written consent to allow the bill to be taken as confessed, the order appealed from must be reversed, of hibdified; so as to make it conform to the usual order for iHe appointment of a receiver upon a creditor’s bill, where the defendant elects to answer, in the ordinary form, instead of cortsentihg to allow the bill to be taken as confessed, and to make a discovery before the master under the provisions of the 191st rule of the court.

Order accordingly.