9 Paige Ch. 395 | New York Court of Chancery | 1842
Two objections are made to the order appealed from in this case : First, that this is not a case in which a decree could be altered in so material a a part without a rehearing ; and, Secondly, that if the supposed defect in the decree could be supplied, the form of the relief given by the vice chancellor was improper. It does not appear by the papers that this was a mere clerical errorj as it is not shown that the complainant asked at the hearing for a personal decree against the appellant, as a party to the bond, or that any such decree was granted by the court previous to the drawing up of the decree which was in fact entered. I have hesitated, therefore, whether it could be proper, without a rehearing, to amend the decree in a matter of substance so material to the rights of the appellant. And upon an examination of the cases I am satisfied such an amendment would not have been permitted in the courts of chancery in England,and in Ireland, without discharging the enrolment and granting a formal rehearing of the cause. This court, however, has not been so strict in relation to the amendment of a decree, in a matter as to which there could not have been a doubt of the complainant’s right to have it made a part of the decree if it had been asked for, and where the neglect to ask the court to have it inserted the decree, as a part thereof,
The right to a decree over against a defendant who has guarantied the payment of the mortgage debt is given by the statute. (2 R. S. 191, § 155.) And it is settled in this court that the decree for the payment of the deficiency may be made in anticipation, as a part of the decree of foreclosure and sale, without waiting until such deficiency is actually ascertained. (McCarty v. Graham, 8 Paige’s Rep. 480.) It would therefore have been a matter of course to have made the decree over against the appellant, in this case, as a part of the original decree upon this bill, if it had been asked for at the time the decree was granted. And if the vice chancellor directed the usual decree in such cases to be entered, without stating what the particulars of such decree should be, the complainant’s solicitor might have inserted this provision as a part of the decree to be entered by the clerk pursuant to such direction of the court. I conclude, therefore, that this was an amendment of the decree, or rather an addition to the decree as drawn up and entered, which might be made by the court without a formal rehearing of the cause.
The vice chancellor was wrong, however, in supposing it was proper to give the amendment asked for a retrospective operation, or to insert the amendment in the enrolled decree. For such a mutilation of the records of the court was not necessary for the purposes of justice, and was contrary to the settled practice in such cases. In the case of Clark v. Hall, before referred to, this court decided that where the amendment asked for was a further consequential direction, founded upon the decree already made, the proper course was to supply the omission by a separate and distinct order ; without altering the decree which had been entered. And such is stated by Daniel to be the English practice. (See 2 Daniel’s Ch. Prac. 688.) The order directing the enrolled decree to be amended by inserting therein the name of the appellant, and that the decree should have the like effect as if the said name had been originally inserted therein, was therefore erroneous, and
The proceedings are to be remitted to the vice chancellor, so that this additional decree may be added to the enrolment which remains before him. And neither party is to have costs as against the other on this appeal.
