5 Paige Ch. 164 | New York Court of Chancery | 1835
There is no foundation for the objection that notices of the hearing, and of other proceedings in the cause, have not been served upon the defendant’s agent. If the defendant still retained his privilege as a solicitor, after his permanent removal from the state, he should have caused his appearance to be entered, within the time limited by the rules of the court, if he wished to secure to himself a right to the service of papers in the cause upon his agent. No service of notices or papers, in the ordinary proceedings in a cause, is necessary to be made upon a defendant who neglects to appear. And if a solicitor, or other officer of the court, upon being served with a subpoena for that purpose, does not cause his appearance to be entered within the time limited by the 22d rule, he will not be entitled to notices of the subsequent proceedings, until he appears in the suit. But where he has appeared, he is entitled to notice of bearing, although he suffers the bill to be taken as confessed. (Hart v. Small, 4 Paige’s Rep. 551.)
It is not a matter of course to set aside an order to take the bill as confessed, upon a simple affidavit of merits, even before a decree; but the court may impose such terms as are just and reasonable. And after a final decree is actually entered in the cause, upon the bill taken as confessed, the court, Ik addition to such equitable terms as may be proper, usually requires the defendant to exhibit the sworn answer which he proposes to file j so that the court may be satisfied as to the nature of his defence, and the sufficiency of the answer. I am disposed to dispense with the actual production of the answer in the present case, in consequence of the defendant’s absence from the state. But as this court has not jurisdiction over the defendant’s person or property, to compel the payment of the extra costs to which the complainant may be subjected by the opening of the decree, if the defence should in the end appear to be groundless, I shall require security to pay the complainant’s costs and damages, in that event.