75 N.J. Eq. 586 | N.J. | 1909
The opinion of the court was delivered by
On November 2d, 1903, the complainants, under the statute, filed a bill to quiet title; the defendants filed separate answers and the case came on regularly for a hearing at the May term, 1904, of the court of chancery. On the 18th of May, 1904, a final decree was advised by Vice-Chancellor Pitney, which was filed May 27th, 1904.
On May 17th, 1907, nearly three years later, the defendant Clarence Ross filed a petition in the court of chancery setting forth that he was a debtor of the defendant Forteseue, and that said Fortescue had begun a suit at law, by attachment, in this state against petitioner and seized the identical lands and tenements described in the said bill of complaint. That Fortescue
This order cannot be sustained. At the time of the making of the decree in this cause the one hundred and eleventh section of the Chancery act (Rev. 1908) was in force, and it provided that all appeals from final decrees on bills to quiet title should be made within three months after filing the decree appealed from. The decree was dated May 27th, 1904, and the time for taking the appeal expired August 27th, 1904. Manifestly no appeal would lie, and defendants sought by petition to open the decree upon the theory contended for on the argument, that such petition or application to open a decree would not be an appeal in any sense. Any question, however, as to this method of procedure has been settled in this court. In Cook v. Weigley, 69 N. J. Eq. (3 Robb.) 836, a petition was filed in the court of chancery to open a decree which had been appealed from and affirmed by this court, and it was held that such a petition should not be entertained and that the only proceeding by which such a decree could be challenged was by a bill of review. The situation in the present case is clearly the same; if a petition to open a decree cannot be filed after an appeal has been taken and decided, it ought not to be permitted to be filed after the time
But it was contended on the part of the defendants that the complainants had no standing in this court to review the order appealed from, because they had failed to appear on the return of the rule to show cause. In support of this contention the case of Townsend v. Smith, 12 N. J. Eq. (1 Beas.) 350, is relied on. That case held that where a defendant does not appear at the hearing before the chancellor, the case having been regularly noticed for argument, he cannot appeal from the decree thus rendered in his absence. This case follows the decision in Gelston v. Hoyt, 13 Johns. 576, but an examination of both cases and the authorities'cited shows clearly that what was decided applied only to the absence of a party at the hearing of the case, and that this view has, since Townsend v. Smith, supra, been again taken in this court is manifest from’ the opinion in Decker v. Ruckman, 28 N. J. Eq. (1 Stew.) 614, where Justice Knapp said: “If the cause had been regularly set down for hearing and noticed for argument, a failure to appear would have placed the appellants in the position of the parties in Townsend v. Smith, 12 N. J. Eq. (1 Beas.) 350, upon the ground that if the defendant voluntarily absents himself from the hear
This question, however, need not be determined, it appearing that the respondents elected to answer the petition of appeal, instead of moving to dismiss it as they might have done. In thus answering they have submitted the case to this court on its merits and have waived any right (if such they had) to dismiss the appeal. This is the rule laid down by this court at the November term last of this court in State Council of Jr. O. U. A. M. v. Enterprise Council, No. 6, ante p. 245.
The decree below should be reversed, with costs.