Brisbane v. Peabody — 3 How. Pr. 109

Majority

p. 109

IN EQUITY. Brisbane vs. Peabody.

Headnote

To be entitledto an-orderpro confesso, against a non-resident Defendant, who has not appeared, the course prescribed by the statute must he pursued strictly. The authority for such an order is derived solely from the statute.

Where the notice to appear, was published in the state paper, and in another paper, different from the one directed hy the ami, although published at the same place, held, that an order pro confesso, entered against the non-resident Defendant, who had not appeared, was irregular.

September Special Term, 1847.

Erie county.

Motion ly Defendant to set aside the order pro confesso and subsequent proceedings in a foreclosure case.—The Defendant resided in the state of Georgia, and had been proceeded against as a non-resident. The order for his appearance

p. 110

was in the usual form, directing notice to be published in the state paper and Buffalo Courier. The order was published in the state paper and in the Buffalo Commercial Advertiser, but not in the Buffalo Courier. The Plaintiff filed an affidavit of the pnbhcation as above stated, took an order pro confesso, and proceeded to a decree and sale of the premises described in the bill. The Plaintiff became the purchaser.

I. O. Putnam, for Left.

A. B. Nichols, for Biffs.

The right to an order pro confesso, against a Defendant who has been proceeded against as a non-resident, and who has not appeared, is derived from the statute alone; and to entitle the Plaintiff to it, he must pursue strictly the steps which the same prescribes. The statute requires the notice to appear, to -be published in the state paper and such other paper as the court shall direct. In this case the court directed it to he published in the Courier. This was not done, but the publication was made in the Commercial Advertiser. It is immaterial whether the Defendant has been prejudiced by this change. The court acquired no jurisdiction of the party, and had no right to order the hill to he taken as confessed. Much less could the order be taken of course.

Motion granted, with costs.