Quackenbush v. Leonard

10 Paige Ch. 131 | New York Court of Chancery | 1843

The Chancellor.

The marriage of one of the female complainants, although after the decree in this cause, was an abatement of the suit; and it must be revived, either in favor of or against the husband, before any further proceedings can be had in the suit, except to set aside the irregular proceedings which have been had in the master’s office in the mean time. But the decree of the court for the correction of errors, affirming the decree of this court, although made after the marriage of one of the complainants, was not void; and it must be carried into effect here after the proper parties are brought before the court. (Rogers v. Paterson, 4 Paige’s Rep. 409.)

The marriage of a female defendant pendente lite does not abate the suit; and it is only necessary in that, case to obtain an order that the suit proceed against her by her new name in conjunction with that of her husband. (Welf. Pl. 162. 1 Ves. sen. 182. Story’s Eq. Pl. 289, § 354.) But by the marriage of a female complainant she is no longer capable of prosecuting the suit in her own name. And the defendant may be injured by being compelled to continue a litigation with one who would not be bound by the decision if adverse to her interest. But if there is a decree in her favor, the defendant is bound by it, and cannot afterwards urge the objection that the suit had abated by her marriage. (1 Dan. Ch. Pr. 153. Mitf. Pl. 57. 1 Rep. in Ch. 231. Nels. Rep. 85.) And as the statute authorizing the revival of suits on a summary application to the court, by petition, does not apply to the abatement of a suit by the marriage of a female complainant, but only to revivals of suits which have abated by the death of a Party5 the proper course in this case is to proceed by bill of revivor. And as this is a case in which the defendants, .... as well as the complainants, have a right to insist that the suit shall be revived, if the complainants shall not procure the suit to be revived within sixty days, the defendants are at liberty to file a bill of revivor for that purpose.

It is too late in this stage of the suit to bring in Webster as a party, even if he would have been a proper party in the first instance. When the defendants denied, in their answer, that they had purchased Webster’s interest in the premises, if the complainants thought he was a necessary party in the cause, that was the proper time to amend their bill, and to bring him before the court. The application for leave to bring him before the court by a supplemental bill is therefore denied. In the present situation of the suit, and before it is revived, it would be improper to make an order to modify the decree as asked for in the petition ; even if this court had the power to change the provisions of a decree in a material part after such decree has been affirmed upon appeal to the court for the correction of errors. But to save the complainants the expense of a future application it may be proper to say, that the decree must be carried into effect as it is, without any alteration in matters of substance, unless by the consent of all parties interested.

The remaining questions to be disposed of are as to the regularity of the proceedings of the defendants upon the reference • and whether the appeal to the court for the correction of errors operated as a stay of the proceedings upon the decree pending the appeal.

The first objection to the proceedings in the master’s office, and which I think is well taken, is that under the decree in this case the complainants’ solicitor was entitled to the prosecntion of the reference in the first instance; and that the solicitor of the defendants had no right to carry the decree into the master’s office until the solicitor who had the carriage of the decree had made default, and had been deprived of his right to prosecute the reference, by an order of the court. As a general rule, the party obtaining an order of reference is entitled to the prosecution thereof, in the first instance. And where a decree is made on the hearing, directing a reference in which both parties have an interest, the complainant’s solicitor is entitled to prosecute the reference, unless the court in making the decree thinks proper to commit the prosecution thereof to the other party. (Benn. Off. of Master, 6. 2 Dan. Ch. Pr. 792. Biddulph v. Fitzgerald, Sauss. & Scul. Rep. 434.) In such a case, therefore, if the solicitor of the complainant neglects to carry the decree into the master’s office, and to take out and serve a summons upon the defendant’s solicitor, within the time prescribed for that purpose by" the 101st rule, the latter should apply to the court, upon notice to the adverse party, to have the prosecution of the reference committed to him, or for such other order as may be proper to expedite the proceedings. And where the party entitled to the carriage of the decree neglects to proceed with due diligence, after he has commenced the prosecution of the reference by the service of a summons to proceed thereon, the remedy of the other party is by an application to the master, under the last clause of the same rule, to have the further prosecution of the reference committed to him. (Holley v. Glover, 9 Paige’s Rep. 9.)

The defendant’s solicitor was also irregular, in this case, in carrying the decree into the office of an ordinary master, who was not authorized to execute the order of reference, which was general, without the consent of both parties, under the provisions of the 99th rule. Where the parties in such a case do not agree upon a master to execute the reference, the party who is entitled to prosecute it should carry the decree into the office of one of the special masters, designated in that rule to execute orders of reference in such cases.

It was also irregular for the master to issue a summons to proceed upon a reference until the deeree was actually entered, and an authenticated copy thereof brought into his office. The possession of the decree or order of reference, by the master, is necessary, not only that he may know he has authority to execute the reference and to summon the parties to appear before him, but also to enable him to exercise a proper discretion in fixing a reasonable time for the service of the summons upon the parties who are to attend before him ; in reference to the nature of the matters to be enquired into, and the evidences of such parties and their solicitors. A discretionary power is committed to the master in this respect, by the 100th rule of the court. And it is his duty to exercise it in such a manner as to do justice to both parties ; and not, as is too often the case, to permit the party who has the prosecution of the reference to fix the time and place of the reference, and the time of service of the summons, so as to suit his own convenience only, without any reference to that of the other parties in the suit.

I have arrived at the conclusion also in this case, that the entry of the appeal to the court for the correction of errors, and. the execution of the ordinary bond for $250, for costs, &c. operated as a stay of proceedings upon the decree appealed from 5 and that the complainants therefore are not too late to apply to set aside the proceedings in the master’s office for irregularity. The decree appears to give all the consequential directions so as finally to dispose of the whole case, upon the coming in and confirmation of the master’s report, by a common ordér in the register’s office, without the necessity of bringing the case again before the court for any other decree or directions. It is therefore a final, and not a mere interlocutory decree • although further proceedings must be had in the master’s office to carry the decree of the court into effect.

The article of the revised statutes relative to appeals, after requiring security to be given and various acts to be done to render an appeal to the court for the correction of errors a stay of proceedings in certain specified cases, contains a general provision that in cases not otherwise provided for, the filing and perfecting the appeal, by the giving of the bond for costs on the appeal, shall stay all proceedings in this court upon the decree or order appealed from and upon the subject matter thereof. (2 R. S. 607, § 89.) And I am not able to discover that the decree in the case under consideration comes within any of the provisions of the statute requiring any thing further to be done besides the giving of the bond for costs, to make the appeal a stay of proceedings. The decree does not direct the payment of money, so as to entitle the respondents toa bond for the payment of the amount decreed in case the decree shall be affirmed. It is true the decree directs the amount of the mortgage money to be paid or that the bill shall be dismissed. But that is not a decree upon which an execution could be issued for the amount of the mortgage money, and of course no bond for the stay of execution was necessary.

The 85th section of the statute provides that where the order or decree appealed from directs the sale or delivery of the possession of any real property, the issuing and execution of process to enforce the same shall not be stayed until security is given not to commit waste, nor to suffer it to be committed, on the premises, and to pay the value of the use and occupation of the property pending the appeal. And where the appellant, or any person other than the respondent himself who is interested in the proceeds of the sale, is in possession of the property decreed to be sold, such a bond is necessary to render the appeal a stay of proceedings. But it never could have been the intention of the legislature," where the respondent himself was in possession of the premises decreed to be sold, and in the receipt of the rents and profits thereof, to require the appellant to give security to him for the payment of such rents and profits, or against waste. In the present case the respondents have the legal estate in the lands decreed to be sold, and are in the possession thereof; so far as that possession can be said to be in any body where the land is in a wild or uncultivated state. Again ; the decree for the sale of these lands is only conditional. For if the complainants neglect to redeem the mortgages, there is to be a strict foreclosure ; leaving the title and possession in the respondents without a sale.

The proceedings in the master’s office and the report made by him, and all subsequent proceedings founded thereon, must therefore be set aside as irregular and unauthorized •, so that when this suit shall have been revived the solicitor for the complainants may carry the decree into the office of a master who is authorized to execute the reference, and to proceed thereon as may be proper. And as the petitioners have succeeded in a part of their application only, neither party is to recover costs as against the other.