Gay v. Gay — 3 Sarat. Ch. Sent. 71

Majority

p. 71

James P. Gay et al. v. John S. Gay.

D. Cady, for the appellants in the first appeal; J. Rhoades, for the defendant who is appellant in the last appeal.

Application by three of the complainants to vacate an order taken by default dismissing their appeal in this suit; and to open a decree obtained upon an ex parte argument, on the cross appeal of the de

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fendant J. S. Gay, and to dismiss that appeal. The chancel jor decided that where the proceedings of the adverse party have been technically regular, and he has obtained a decree or order which is in conformity with the real equity of the case, this court will not open a default, as a mere matter of favor, to enable the applicant to insist upon mere technical objections. And upon the argument of the motion in this case, he allowed the parties to go into the merits of the whole case, for the purpose of ascertaining with whom the substantial equity and justice thereof lay.

Defaults,when oponed.

Timo for appealing from interlocutory orders or decrees.

when notice or order, &c: not necessary.

when order to bo considered as entered.

whatisasuin-order or decree

Time for appeal-extended!*' b°

Decided also, that an appeal from an interlocutory orde r 0f a vice chancellor must be entered, and notice thereof served on the adverse party, or his solicitor, within fifteen days from the time when the appellant had notice of such order. That where the appellant draws up and enters the order, he has notice, in fact, thereof, at the time he enters the same. And that an order is considered as entered from the time when it . is drawn up, or settled, and left with the register or clerk to be copied into the records of the court,

That where the appellant does not himself enter the order or 'interlocutory decree appealed from, he has fifteen days for appealing, after he has notice of the entry of the order or decree, either by the service of a formal written notice on him or his solicitor, or the service of a copy of the order or decree itself. But that a mere constructive notice, or even a parol notice, of the entry of the order is not sufficient to limit the right of appeal, in such cases.

That the time for appealing from interlocutory orders or decrees being fixed by statute, cannot be extended by the court.

That the right to set off one judgment or decree against an-othei’, by a motion to this court, or by a summary application to the equitable powers of a court of law, only exists in those cases where the debts on both sides were finally liquidated by the judgment or decree before the assignment of either, to a third party. And that where one debt is absolutely assigned to a stranger pending the litigation, and before it is liquidated, by a final judgment or decree, the one cannot be setoff against

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the other, on motion, even in this court; where the two debts have no connection with each other.

But that upon a bill filed in this court the right of set-off does not always depend upon the statute of set-ofij or upon the question whether both demands are liquidated by judgment or decree. That if an equitable right of set-off exists while the parties have mutual demands against each other, besause the debt due to the party claiming the set-off is so situated that it is impossible for him to obtain satisfaction of his debt by an ordinary suit at law or in equity to recover the same, this court, upon a bill filed, will compel an equitable set-off of one debt against the other. And the insolvency of the party against whom the set-off is claimed is a sufficient ground for the exercise of the jurisdiction of this court, in allowing a set-off in cases not provided for by the statute; although the demands on both sides are not' liquidated, by judgment or decrée, so as to.authorize a set-off upon a summary application, by motion. .

That where there are cross demands between two parties of such a nature that if both were recoverable at law they would be the subject of legal set-off, then if either of the demands is matter of equitable jurisdiction only, the set-off may be enforced in equity.

Motion denied, with $10 costs.