Livingston v. Woolsey
New York Court of Chancery
MOTION to set aside a decree by default, and subsequent proceedings, as irregular; 1. Because, the defendant’s solicitor was not ruled to answer, before the entry of the rule taking the bill pro confesso ; 2. Because, the defendant died immediately after the entry of the final decree, and before the Master received the decretal order to sell the mortgaged premises.
Read the full summary
MOTION to set aside a decree by default, and subsequent proceedings, as irregular; 1. Because, the defendant’s solicitor was not ruled to answer, before the entry of the rule taking the bill pro confesso ; 2. Because, the defendant died immediately after the entry of the final decree, and before the Master received the decretal order to sell the mortgaged premises. It appeared, that upon service of the subpoena, the solicitor for the plaintiff was requested, by letter, on behalf of the solicitor of the defendant, to enter the appearance of the defendant, and to enclose to him a copy of the…
1Opinion of the Court
The Chancellor.
The fact, that a copy of the bill was enclosed by letter to the solicitor of the defendant, and an answer to the bill requested, is an admission of the *367appearance of the defendant, or, at least, a waiver of the formal entry of it with the clerk, and, consequently, the defendant was to be deemed rectus in curia, and entitled to be ruled to put in an answer, before the bill was taken pro canfesso, against him. The subsequent proceedings, on the part of the plaintiffs, were, therefore, irregular. As Lord Hardwicke observed, in Floyd v. Nangle, (3 Atk. 568.) “ If there is an…
2Cited by1 opinion
- Sebastian v. JohnsonIllinois Supreme Court · 1874