Lawrence v. Bolton — 3 Paige Ch. 294

Majority

p. 294

Lawrence vs. Bolton and wife.

May 15.

Headnote

In ordinary cases the defendant is not entitled to notice of the application for leave to file a supplemental bill. Notice of the motion is necessary only where the complainant aslcs for a preliminary injunction or some other special relief upon the matter of the supplemental bill, previous to the time for the appearance of the defendant thereto.

If a supplemental bill is filed without any sufficient grounds, the defendant must make the objection by plea, answer or demurrer.

If a party to the original bill does not voluntarily appear to a supplemental bill, or bill of revivor, the complainant must proceed by subpoena to obtain an appearance to the same.

Where the complainant, instead of taking out a subpoena on a supplemental bill, entered an order that the defendants answer the same within forty days, and the defendants thereupon applied for and obtained an order for further time to answer, it was held that they had waived the irregularity.

Upon a mere amendment of the complainant’s bill, no new subpoena is necessary, except to bring in new defendants who are made parties by the amendment.

After the proofs in the original cause were closed, the complainant applied to the chancellor and obtained an ex parte order for leave to file a supplemental bill. On the filing of such bill, and without serving any subpoena to answer the same, the complainant’s solicitor entered a common order that the defendants answer the supplemental bill within forty days. After the receipt of a copy of the bill, and notice of the order, the defendants’ solicitor applied to an injunction master and

p. 295

obtained an order extending the time to answer. He also gave notice of an application for a dedimus to take the defendants, who were out of the state. This notice was after-wards countermanded ; and the defendants’ solicitor then gave notice of the present application, to set aside the supplemental bill for irregularity, or for such other relief as the defendants might be entitled to upon the facts set forth in their petition.

J. Rhoades, for the complainant.

M. T. Reynolds, for the defendants.

The defendants’ solicitor was under b mistake in supposing he was entitled to notice of the application for leave to file the supplemental bill. Such notice is only necessary where the complainant wishes to obtain a preliminary injunction, or some other special relief founded on the supplemental bill, previous to the time for the appearance of the defendants in the supplemental suit. In general, the leave to file such a bill is obtained upon an ex parte application. (2 Paige's Rep. 335.) And if it is filed without any sufficient grounds, the defendants must make the objection by plea, answer or demurrer. (1 Paige's Rep. 200. 2 Mad. Rep. 53, 387. 17 Ves. 144.) The bill was regularly filed in this case; but it was irregular for the complainant to enter an order to answer the same, without taking out process of subpoena, and before the defendants had appeared to the supplemental bill. By the practice of the court of chancery in this state, no subpoena ad respondendum is necessary upon a mere amendment, unless there are new defendants. But upon a supplemental bill, or bill of revivor, the complainant must proceed by subpoena, unless the defendant elects to appear voluntarily. (1 Brown's Ch. Prac. 267.) The defendants in this case have waived the irregularity of the order, to answer in forty days, by appearing before the injunction master and obtaining further time to answer the supplemental bill. As the issuing of the subpoena in this case, where the defendants were actually before the court in the original suit by their solicitor, was a mere matter of form, there is no reasonable grounds for inter

p. 296

fering to correct the irregularity at this time; except so far as is necessary to give the defendants an opportunity to make then: defence. As they are residing out of the state, they are to have two months from the time of the entry of the order upon this decision, to plead, answer or demur to the supplemental bill, or the same may be taken as confessed against them.

As both parties are in the wrong as to their proceedings, neither is to have any costs on this application.