American Life Insurance & Trust Co. v. Gary

Application on the part of defendant G. V. Sackett for an order to examine co-defendants, and for a commission, and to extend the time to take test*raony’ chanc°ll°r decided that upon an application for leave to examine a co-defendant as a witness there must be an affidavit that the person proposed to be examined is not interested in the matters to which he is to be examined; and and that an affidavit of the solicitor, that he advised and believes such person is a competent witness is not sufficient

Also held that where an original bill has boon filed against all the necessary parties, but in consequence of the transfer of the interest of one or more of the defendants to a third person, who represents the same right and interest — as, by a sale or bankruptcy pending the litigation — it becomes necessary to file a supplemental bill merely against the grantee or assignee of the original defendant, to bring him before the court as a party, the only matter proper to be put in issue by such supplemental bill, unless some matter of defence has arisen since the joining of the issue in the original cause, is the supplemental matter which is stated in the bill, to show the transmission of interest from the original party to the new party who is brought before the court by the supplemental bill.

That the effect of such a bill is to review the proceedings •against the new party who has succeeded to the rights of the original party, and place them in the same situation as they were against the latter when the original suit became defective. If the original bill had been fully answered, the new defendant adopts that as his answer to the original bill. If the bill had been taken as confessed, the order pro confesso stands as against him, unless he obtains leave of the court to have it opened ; and if the proofs in the cause have been closed they remain closed as against him.

That a supplemental bill of this character is a mere continuation of the original suit against the new defendant who has succeeded to the interest of the former party ; and the sup plena ental .suit, together with the orginal bill and the proceedings under it, constitute but one record. And if the supplemental bill is filed before a decree, the original and supplemental suits are heard together, and but one decree will be made in both.

Application denied, with $'10 costs.