Scudder v. Voorhis
New York Supreme Court
In Equity. Motion to set aside an order taking bill as confessed against the defendant Abraham Voorhis for want of appearance. It was shown that the plaintiffs, after taking the bill pro confesso, had amended their bill by adding defendants; without having taken out any new subpoena. After the default, on the original subpoena, was entered, the defendant Voorhis entered an appearance and asked the plaintiff’s soliciten; to waive the order pro confesso ; which was refused.
1Opinion of the CourtEdmonds, J.
The motion is granted. The plaintiffs, by-amending their bill, waived the default. This must be so, or the case might assume this anomaly: that the defendant’s de-' fault might be taken on the original bill, and his answer be received on the bill as amended.(a)
In The Bank of Utica v. Finch and others, (1 Barb. Ch. Rep. 75,) the chancellor decided that where an original bill is taken as confessed, and an amended bill is subsequently filed, making other persons parties, the order pro confesso is thereby opened. By the English practice a new subpeena is issued upon filing an amended bill,…
2Cases cited3 opinions
- Lawrence v. BoltonNew York Court of Chancery · 1831
- Bank of Utica v. FinchNew York Court of Chancery · 1845
- Cowman v. LovettNew York Court of Chancery · 1844
3Cited by1 opinion
- McMinn v. WhelanCalifornia Supreme Court · 1865