In re Peekamoose Fishing Club

The appellants have been guilty of gross laches in the making of the present motion. The orders which are complained of as irregular were made in October of last year and the present motion was made in June of this year. Meanwhile the appellants have wasted their time in fruitless appeals from the orders which they now seek to-set aside as irregular, and in applications to open the default which resulted in the making of the orders in question. They spent further time in appeals from the order denying their application to open this default. And now, when their incorrect practice has been brought home to them by repeated adjudications, they go back to where they were in October-of last year, ignore the subsequent action, and ask directly to vacate the orders complained of as irregular. This motion to so vacate was properly denied, because of their laches and because the steps which they took for relief against these orders were inconsistent rvith the present claim of irregularity. It matters not that the irregularity has been pressed upon the court in various phases of these other applications. We must look to the precise nature of these other applications, as formulated by the notices of motion, or orders to show cause,—not to the arguuments addressed to the court thereupon—to ascertain whether they were inconsistent with the present application. Clearly, an application to open a default, appealing to the discretion and favor of the court, proceeds upon an entirely different theory from an application to set aside the default, as matter of right, because of the alleged and specified irregular

We think, hoAvever, that the present motion Avas properly denied upon the merits. There Avas in fact no irregularity. The fallacy of the appellants’ contention, throughout, consists in the assumption that Whiton’s orb,"nal application AA'as a mere interlocutory motion in the proceeding, and that the only relief which the petitioner could have thereon, in case of Whiton’s default, was a dismissal of such motion. The true vieAV of Whiton’s application is that it was an applica t tion for a final order in this special proceeding. Of course, the final order that he desired and demanded was a final order dismissing the proceeding. But it was none the less an application for a final hearing of the entire proceeding. When that application was brought on, all parties in interest were before the court, and the hearing was regularly adjourned to a later day. At this point the court took jurisdiction of the application, and acted upon it preliminarily. All parties Avere heard upon the application for the postponement. Thus, when the matter came up upon the adjourned day, the proceeding was regularly before the court, as a court of equity, for final hearing and disposition. It was there for final judgment; that is, for a final order,—for a final order of dismissal, or a final order of dissolution, as the-court should determine. After one of the parties had moved for a final order r.:ch as he desired, and after an adjournment of that application in the presence of, and after hearing, all the parties to the special proceeding, it was not necessary for any of the parties to serve a notice of motion ■ for such final order of a different character as he desired. , The adjournment being thus had for the purpose of a final ; hearing, the AArhole matter was before the court, and came-up, as unfinished business, upon the adjourned day. Thereafter the court had full power, without further notice, to proceed to grant such final order, either way, as it deemed just. By the adjournment the parties agreed, in substance, to-proceed to a final hearing of the special proceeding upon the adjourned day; and whatever judgment was then pronounced—whether a judgment of dismissal or a judgment, of dissolution—was at least regular.

That disposes of this appeal. There is also an appeal from an order directing the receiver to sell the property. This order AA’as clearly proper. It is, indeed, quite time that this property should be sold, and the corporation wound up.

Both orders should therefore be affirmed, with $10 costs of each appeal, and disbursements.