Cornell v. McCann

Alvey, J., delivered the opinion of the Court. While the order of the 11th of August, 1871, consolidating the two causes, Dunkinson vs. Birdseye, and McCann vs. Dunkinson et al., may be very proper and expedient with a view to the final determination of the many conflicting claims involved, it is quite improper that such consolidation should take place as an arrangement between the complainants in the two bills, to effect an object the result bf which may and will likely be prejudicial to the rights and interests of some of the parties defendants. The bill filed by Dunkinson against Birdseye had been taken pro confesso, and a decree passed thereon for the sale of the property in controversy. After this decree, but before the sale had taken place, McCann filed his bill, to which both Dunkinson and -Birdseye are made defendants, and wherein is strongly controverted the claim set up by Dunkinson, and an injunction was prayed and granted, restraining the trustees, under the decree passed on Dunkinson’s bill, from proceeding to make the sale. To the bill filed by McCann, Dunkinson answered, and, by his answer, denies and controverts the claim set up by McCann. It is also shewn that there are other parties, who are made defendants to McCann’s bill, asserting claims to and against the property, which may be found to be superior to the rights and claims, whatever they may be, of either Dunkinson or McCann. It was in this condition of proceedings that the petition of McCann was filed on the 11th of August, 1871, stating that an arrangement had been entered into by the litigating parties, subject to the approval of the Court, whereby the two causes should, be consolidated, the injunction dissolved, and a new decree passed in the case of Dunkinson vs. Birdseye, modifying the original decree passed therein, by associating another trustee with the two already appointed. On the same day of filing this [97] petition, Dunkinson answered it, and, while altogether denying the claim of McCann, he assented to the arrangement stated in the petition. Thereupon, forthwith, without further inquiry, and without the assent of, or hearing from, the other parties interested, the orders of the 11th of August, 1871, were passed; the first, being entitled as in the case of McCann vs. Dunkinson et al., consolidating the two causes, and dissolving the injunction; and the second, entitled as in the case of Dunkinson vs. Birdseye, modifying the original decree as proposed. To this last order was added a clause to the effect that the sale to be made should pass the title of all the parties to the two causes, and that the purchaser should acquire a title to the estate sold, free, clear and discharged from all'claim of any or all of the parties to both of the causes so consolidated. These orders were passed without the knowledge or consent of the appellants, and being non-residents, before they were required by the terms of the order of publicacation against them, to appear and answer the bill to which they were defendants. They were therefore, without an opportunity of disclosing the nature of their claim and title, and of resisting the passage of the orders iii question. On filing their answer, which was in due time, the appellants, as did several of the other defendants, filed their petition, praying that the previous order or decree of the 11th of August, 1871, modifying the original decree of sale, should, for the reasons therein stated, be rescinded; but that petition, and the petitions of the other defendants, were all by the order of the 21st of September, 1871, dismissed with costs; and the trustees were directed to proceed with the sale. From this last order, as well as from the two preceding orders of the 11th of August, 1871, an appeal has been taken, and consequently all those orders are before us for review. [98] It is contended, on the part of the appellees, that the modified decree of sale, of the 11th of August, 1871, was passed under and by virtue of the power given by.the 129th section of the 16th Article, of the Code, authorizing the Oourt to pass an order of sale before final hearing; and though professing to be a modification of the final decree of sale passed on taking the bill of Dunkinson vs. Birdseye, pro confesso, yet it is but an interlocutory order of sale; such as is contemplated by the section of the Code referred to. There is some difficulty, however, in saying that such is its real character. It does not profess to have been passed under the particular section of the Code relied on, nor was there any proof taken to clearly satisfy the Oourt that a sale would certainly have to be decreed on the final hearing of the cause, to which the appellants were parties; and if such sale has not been shewn to be the necessary result of the final hearing of that case, certainly the appellants have cause of complaint that they were without their knowledge and consent, by means of the consolidation-thrust into another case, to be made subject to and bound by an existing decree, based upon the allegations of a bill.taken pro confesso, and to which they were not parties. From the rnanner in which the original decree came to be modified, it is manifest that it was intended that such original decree should be preserved and made effectual, with the modification incorporated into it; and that the right and power of sale should rest rather on'tbe allegations of Dunkinson’s .bill taken as confessed, than on any evidence that might be offered, that a decree of sale would certainly and necessarily be passed on final hearing of the case of McCann. But even if the appellees were correct in contending that the order of sale was intended to be made in the exercise of the power and discretion given by the Code, [99] Art. 16, sec. 129, still we are very decidedly of the opinion that the circumstances of this case were not such as to justify the exercise of the power. The power referred to, is one of an extraordinary character, and should never be exercised except in very plain and unquestionable cases. Indeed, it should plainly appear beyond reasonable doubt, either by proof or from the very nature of the case itself, that a sale must inevitably be decreed on final hearing, to justify the passing of the interlocutory order ; especially if applied for by the complainant only, and before the appearance and answer of the defendants who may be affected-by the sale. It is true, there may be cases where such an order would be jirpper even before the appearance and answer of the defendants ; but this can only be the case where, from the nature of the proceedings and the evidence disclosed by them, the Court can see with certainty that the final decree in the cause will require the property to be sold ; and not only that it will be required to be sold as the proper, direct or ultimate relief prayed, but there should exist a necessity for an immediate sale. And even in the most pressing cases, where it is practicable or possible, all parties who may be affected by the sale, should have an opportunity to be heard, and to shew cause against it, before the order is passed. Otherwise, great injustice might frequently be done in the exercise of this power, which was intended to bo exercised not for the benefit of one party only, but for the benefit and protection of all concerned. As the appellants were not allowed a reasonable opportunity to resist the passage of the orders of the 11th of August, 1871, and the orders themselves, under the circumstances disclosed, not appearing to be proper as against the appellants; and as their application to have the order of sale rescinded was improperly dismissed, we shall [100] reverse the several orders appealed from, with costs, and remand the cause for further proceedings. (Decided 13th December, 1872.) Orders reversed, and cause remanded.