Mulford v. Reilly

The Chancellor. The defendant, Reilly, was, by accident, prevented from attending before the court when the decree for deficiency was made against him. It was made by way of amendment to the final decree, which was made upon a decree pro con-, fesso. He now moves to set the decree for deficiency aside, on the ground of surprise and merits. He alleges that no ticket notifying him of the claim for a decree for deficiency was served upon him. In his affidavit he states that he was served, as he fully believes, with an ordinary subpoena ad respondendum, and had no knowledge of information of a prayer for deficiency. It will be seen that he does not swear positively that no ticket was served on him. The sheriff’s return “served” is presumptive proof of the service of the ticket. Bell v. Gilmore, 10 C. E. Gr. 104. The defendant, then, shows no surprise. He claims, also, that the decree for deficiency is irregular, because it was founded merely on a decree pro confesso without proof. He is, under the circumstances, presumed not only to have had notice of the suit by means of the subpoena, but to have had special notice by the ticket that a decree for deficiency was prayed against him. The averments of the bill, if proved, were sufficient to warrant such a decree. He did not see fit to answer them. The statute and the practice of the court justify the decree. Rev. p. 109 § 28; Brinkerhoff v. Franklin, 6 C. E. Gr. 334. The petition will be dismissed, with costs.