Tripp v. Vincent
New York Court of Chancery
This was an appeal by Woodburn and Dey Ermond, two of the defendants, from a decision of the vice chancellor of the seventh circuit, denying their application to open a decree which had been taken against them by default, and to permit them to put in an answer and defend the suit.
Read the full summary
This was an appeal by Woodburn and Dey Ermond, two of the defendants, from a decision of the vice chancellor of the seventh circuit, denying their application to open a decree which had been taken against them by default, and to permit them to put in an answer and defend the suit. The bill was filed, to foreclose a mortgage given to the complainant by D. H. Birdsall, and the appellants were made parties to the suit as judgment creditors of Birdsall having a subsequent lien upon the mortgaged premises by virtue of their judgment. The subpoena was served upon Woodburn only, and he gave an…
1Opinion of the Court
The Chancellor.
The proceedings to take the bill as confessed against Dey Ermond were clearly irregular, as Woodburn was not authorized to admit service of the subpoena in his name. But if there had been no affidavit of merits in the case, I could not say that the vice chancellor, after decree, was absolutely bound to set aside the proceedings for an irregularity merely technical. It cannot properly be said, however, that there was any waiver of *178the irregularity on the part of Dey Ermond; as there is nothing in the papers to show that he had any knowledge of this suit, or of the admission of…
2Cited by8 opinions
- Stribling v. HartSupreme Court of Florida · 1883
- Low v. MillsMichigan Supreme Court · 1886
- Smith v. CraftU.S. Circuit Court for the District of Indiana · 1882
- McCall v. . McCallNew York Court of Appeals · 1874
- Volland v. WilcoxNebraska Supreme Court · 1885
3 more not listed; retrieve them via the Exa API.