Manley v. Kalamazoo Circuit Judge

Per Curiam. Lucy C. Eames, individually and as administratrix of the estate of Lovett Eames, deceased, filed a bill against the relator, as administrator of the estate of Elijah W. Morgan, deceased, Otis C. Johnson, executor and trustee of the estate of Lucy W. S. Morgan, deceased, and Lucy D. S. Parker, individually and as executrix of the estate of Franklin Parker, deceased. The bill sets out that relator’s intestate, Elijah W. Morgan, was permitted by complainant to handle the assets of the estate of Lovett Eames, and claimed there was a large sum of money due from his estate to the estate of Eames. The defendants Johnson and Parker appeared, and demurred to the bill. "While these demurrers were pending, the relator caused his appearance to be entered by D. O. French, as solicitor. A few days later the solicitors of complainant entered an order dismissing the bill as to defendants Johnson and Parker, and almost immediately, without answer or other pleading from relator, a decree was entered against him amounting to $145,485.37. The decree was entered without proofs, and upon the consent of Mr. French. Subsequently a petition was filed by the relator to vacate this decree and permit a defense to be made; setting up that the relator expected that the defendants Johnson and Parker would make the principal defense in the case, and that, while he employed Mr. French as' solicitor, he did not instruct him to make a particular defense to the case. It does not appear, except from the fact of the general employment of Mr. French, that he was authorized to consent to this decree; and we are strongly impressed with the view that, upon the practice being conformed to, an opportunity should be afforded the relator to enter into a defense on the merits. But attention is challenged to the fact that the.requirements of Chancery Rule No. 25 were not met in the application that was made to the circuit judge. 527 There was no certificate of counsel such as is required by -that rule upon application for rehearing-; and while under the authority of Barnes v. Kent Circuit Judge, 97 Mich. 212, the lapse of time has not been such as to prevent a new application, we think the proper course is to deny the present application, without prejudice, and permit the question to be presented anew, upon proper showing, to the circuit judge.