Hammond v. Tarver

The mode of assigning errors in the petition for a writ of error in this case is substanially the same as that adopted in the case of Hodo v. Railway, in which we have this day allowed the applicant ten days in which to amend his application in that particular. The purported assignments in this petition cannot, therefore, be considered. We are of opinion, also, that the full statement of the case made in the opinion of the Court of Civil Appeals renders any additional preliminary statement in the petition unnecessary and improper. Amended Rule 1, of rules for this court, specifies distinctly what a petition for a writ of error shall, and what it shall not, contain; and was intended to relieve counsel of the necessity of repeating what appeared elsewhere in the papers, which are made a part of the application; and to relieve the court, as well, of the labor of reading unnecessary averments. Some petitions presented since the rule took effect evince, either that counsel have mistaken the rule, or that they were not disposed to regard it. We take occasion to admonish the bar that the rule will be strictly enforced, and that a failure to observe it will result either in a delay of the case or a dismissal of the application. The applicant in this case will be allowed ten days in which to amend his petition. Should he fail to do so within the time prescribed, it will be dismissed. Opinion delivered October 24, 1895. The application having been amended the writ was refused. Applicant moved for rehearing. J.O. Nicholson, for motion. — A decree of foreclosure — wherein the trustee has been omitted without cause, is subject to collateral attack, and conveys no title that will be valid against non-assenting parties. Wiltsie on Mortgage Foreclosures (1889 ed.), sec. 146; Stevens v. Union Trust Co., 57 Hun., 493; Barry v. Railroad, 22 Fed. Rep., 631; Raht v. Attrill, 13 N.E. Rep., 282; Mercantile Trust Co. v. Railway, 10 Fed. Rep., 604; Harrland v. Bankers, etc., Co., 32 Fed. Rep., 305; Harris v. Cornell, 80 Ill. 54; Gardner v. Brown, 21 Wall., 36-41; Barb v. Poole, 12 N.Y. 495-508. *Page 292 The trustee and any one of the omitted bondholders may — by reason of this want of indispensable parties — attack the sale. Raht v. Attrill, supra; Stevens v. Union Trust Co., 57 Hun., 493; Mercantile Trust Co. v. Railway, 10 Fed. Rep., 604; Hambrick v. Russell, 86 Ala. 199; Comer v. Bray, 83 Ala. 217; Prout v. Hoge, 57 Ala. 28; Glidden v. Andrews, 10 Ala. 166; Harrland v. Railway, 32 Fed. Rep., 305; Harris v. Cornell,80 Ill. 54; Gardner v. Brown, 31 Wall., 36; Barb. v. Poole,12 N.Y. 495; Barry v. Railway, 22 Fed. Rep., 631; Goodall v. Mopley, 405 Ind. 355; Brooks v. Brooke, 12 Gill J., 306; Watson v. Spence, 20 Wend., 260; Tucker v. Silver, 9 Iowa 261; Morgan v. Railway, 15 Fed. Rep., 55.