Bond v. Howell — 11 Paige Ch. 233

Majority

p. 233

Bond vs. Howell and others.

Headnote

Where a complainant amends his hill during the running of an order for an absent defendant to appear, it is not necessary to obtain a new order for the absentee to appear and answer the bill as amended, and to advertise a second time.

If the absentee neglects to appear, and an order is subsequently entered to take the bill as confessed against him, it is an order to take the bill as confessed in the state it is then in, including the amendments.

The practice is the same, where the complainant amends his bill after the personal service of a subposna upon the defendant, who neglects to appear in the suit; and the service of a new subpoena upon such defendant, is not necessary to authorize the entry of an order to take the amended bill as confessed.

This case came before the chancellor upon an appeal by the defendants Trowbridge and Nichols, from an order of the vice chancellor of the eighth circuit, refusing to dismiss the complainant’s bill for want of prosecution. And the only question

p. 234

was, -whether the bill, as amended, had been properly taken as confessed against an absent defendant, so as to place this suit in a proper situation for taking testimony as between the complainant and the defendants who had appeared and answered. The complainant, after he had obtained the usual order for the absent defendant to appear and answer, amended his bill. And the order having been duly published, and the absentee having neglected to appear, the complainant entered the usual order to take the bill as confessed against him,

J Rhoades, for the appellants.

R. W. Peckham, for the respondent.

said, the bill as amended had been regularly taken as confessed against the absentee, and the suit was, therefore, in readiness to take testimony as between the complainant and the other defendants; that where the complainant amends his bill during the running of the order for an absentee to appear, it was not necessary to obtain a new order for the absentee to appear and answer the bill as amended, and to advertise a second time; that if the absentee neglected to appear, and an order was subsequently entered to take the bill as confessed against him, it was an order to take the bill as confessed in the state in which it then was, including the amendments. And he said the practice was the same where the complainant amended his bill after the personal service of a subpoena upon a defendant, who neglected to appear in the suit; and that the service of a new subpoena was not necessary, in such a case, to authorize the entering of an order to take the amended bill as confessed.

Order of the vice chancellor affirmed.