Emery v. Airth

Brooke, J. On November 24, 1897, complainant gave to defendant Watson her promissory note for $660, secured by a real estate mortgage covering certain lands described in the bill of complaint. On the same day defendant Watson assigned said note and mortgage, together with five other notes and mortgages, to defendant Airth as security for his note of $1,100, given to Airth. Complainant between the years 1898 and 1908 made certain payments upon principal and interest to defendant Watson, some of which were turned over to Airth by Watson. On November 8, 1911, complainant tendered to defendant Airth $145, which she claimed to be the balance due from her and demanded a discharge of the mortgage. This being refused, she filed her bill of complaint, alleging the payment to Watson of the several sums of principal and interest, alleging her ignorance of the assignment from Watson to Airth and averring that Watson was the agent of Airth. To this bill defendant Watson filed an answer admitting all the material averments, except as to the amounts paid. As to those he left complainant to her proof. Defendant Airth filed an answer and cross-bill. He admitted the making and assignment of the mortgage as alleged, but denied that Watson was his agent to collect the moneys payable thereunder, and denied that — 435 — complainant had made any payments upon principal or interest to said Watson as his agent, and claimed that there was then due him upon said mortgage the sum of $629.85; this sum being the balance due him from Watson on the $1,100 note. He prayed for an accounting as between himself, complainant, and defendant Watson, and for a sale of the mortgaged premises to satisfy any sum found to be due from complainant. Upon this cross-bill a subpoena was issued and duly served upon defendant Watson. Watson not having appeared, an order pro eonfesso was duly entered against him by the solicitor for cross-complainant Airth on June 5, 1912. On July 3, 1912, the case came on to be heard. The complainant and her counsel were present, Defendant Watson was represented by his counsel, Mr. I. S. Canfield, and defendant Airth by his counsel, Mr. William N. Cross. Testimony was taken in open court, and it was determined that defendant Watson was indebted to defendant Airth in the sum of $644.21, and that of this sum complainant should pay the sum of $272; that being the amount found to be due from her upon her note and mortgage. A decree was noticed for settlement on July 15, 1912. That decree provided that complainants should pay the sum of $272 to defendant Airth, and in default thereof her mortgage should be foreclosed, and further that defendant Watson should pay to Airth, as cross-complainant, the further sum of $372.21 with costs. On the same day (July 15, 1912) defendant Watson filed objections to the entry of any decree against him. It is necessary to notice the third objection only: “Because said defendant Watson has not been brought before the court as a party defendant to said cross-bill.” The other objections are all such as should have been urged by way of demurrer or answer to the cross436 bill. As to the third objection, the record conclusively shows that personal service of the subpoena issued on the cross-bill was made upon defendant Watson on February 20, 1912. The proposed decree was not finally signed until January 25, 1913. In the meantime, defendant Watson had filed an answer to the cross-bill and by his counsel now claims to have secured an oral order from the court that his default should be set aside and a hearing had upon the issues raised by his answer. On January 18, 1913, complainant Emery filed a petition in the cause asking-leave to pay into court the sum of $272, and have her mortgage discharged. This petition came on for hearing on January 24, 1913, and the decree was signed the following day. On April 29th, defendant Watson filed a petition asking leave to be heard touching the issues raised by his answer to the cross-bill, voluminous affidavits and counter affidavits were filed, and the matter came on to be heard on July 7, 1913. The learned circuit judge made the following finding and order: “In this matter it is made to appear before the court that a claim for appeal from a decree heretofore, on the 3d day of July, 1913, granted herein, was made by the said Arthur F. Watson on the 17th day of April, 1913, and a case proposed and amendments proposed to the case was this day brought on for consideration of the court, and there was also brought on for consideration before the court a petition dated April 29, 1913, in which it appears that 'the petitioner therefore appears in this honorable court and asks to be heard touching the matters of said decree and herein refers to his answer to the said bill of complaint now on file in said cause, and asks that he may be permitted to file the same, or such other answer as he may deem best in said case, and that upon the hearing said court will order that said decree be set aside, altered, or amended as to court may seem just, and that the court will grant the petitioner such other relief in the premises as to equity shall appertain,’ and — 437 — said petition coming on to be heard on notice, I. S. Canfield appeared for the .defendant Arthur F. Watson, William N. Cross and Victor D. Sprague appeared for Henry M. Airth, and Mrs. Mary Emery was not personally represented, a full hearing was had upon the petition, an examination of the records and files made the answer of Mary Emery and Henry M. Airth to said petition of Arthur ,F. Watson, and the affidavits in support of said answer were all presented to the court, and after hearing counsel, and the court being fully informed in the premises, and after full hearing, the court doth find, order, adjudge, and decree as follows: “ (1) That the said Arthur F. Watson was duly and regularly served with subpoenas to answer the cross-bill, and his default for not appearing, answering, or demurring thereto was regularly taken. “(2) That the defaults of said Arthur F. Watson were not set aside by oral order or other order of the court as alleged in paragraph 4 of said Arthur F. Watson's petition. “(3) That a full hearing and trial of said case was had on July 3, 1912, and testimony taken, and that said Watson was represented by his counsel, I. S. Can-field, during a portion of said hearing had on the forenoon of said day, and he absented himself on the afternoon- of said day without asking or obtaining permission of the court. “(4) That on said July 3, 1912, after such full hearing, and argument of counsel, a decree was granted, and the terms thereof fully determined by the court, and that the decree finally entered is in accordance with the terms as then provided by the court. “(5) That on July 13, 1912, a form of decree was presented to the court, after due notice given to Arthur F. Watson, and the other parties interested, and that there was present and represented at that time Mr. Cross, as solicitor for said Airth, and Mr. Canfield, as solicitor for said Watson, and that said Watson, through his solicitor, filed some objections and exceptions to the entering of a decree, largely based upon an affidavit in which it was claimed that the defaults of said Watson were irregular and illegal, and that no process had been issued against him under the cross-bill, and no service of said cross-bill had, — 438 — which allegations as to nonservice of process and no service, this court thereafter found, and now finds to be untrue in fact, and that a subpoena was regularly issued against said Watson under said cross-bill and regularly served upon him, and his default thereafter regularly taken, and that all this occurred prior to the hearing and decree on July 3, 1912, the former decree, being taken under advisement by the court, was finally settled and signed as proposed by the court, and the same duly filed by complainant on January 25, 1913. “(6) That since the decree was made and before the petition herein was filed, the status of the parties had changed, it appearing that under the terms of said decree Mrs. Emery had paid into court her money and had discharged the mortgage in question. “(7) That on April 23, 1913, before the filing of the petition herein, the decree and all proceedings hereunder were enrolled. “(8) That the decree heretofore made herein is in accordance with the justice of the case, and was duly and regularly settled according to law, and is hereby confirmed in every particular, and the petition dated April 29, 1913, of said Arthur F. Watson, is hereby dismissed as insufficient in law and fact to warrant the setting aside of said decree.” The decree so far as it affects complainant Emery appears to have received the assent of defendant Watson in open court. As between himself and defendant Airth he has no right to complain. He was personally served with process under the cross-bill and neglected to enter his appearance. He was in court by his solicitor when the cause came on to be heard, and his counsel seems to have participated for a time in the hearing when he absented himself, before the differences between himself and Airth were considered. There are two reasons why his default, duly entered, should not have been set aside: First. He did not tender a sworn answer as required by Chancery Rule 7. Hews v. Hews, 145 Mich. 247 (108 N. W. 694). Second. His application was not made within six months after the entry of his default. St. Louis — 439 — Hoop & Stave Co. v. Wayne Circuit Judge, 155 Mich. 311 (118 N. W. 989), and cases cited. The decree is affirmed, with Costs. McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit. — 448 — This was made out from information which the adjuster Spear testifies he secured from the plaintiff. It is signed by the adjuster, and not by the plaintiff. It is contended by defendant that the record clearly shows that the last item therein, “less purchaser’s interest per advance payment made, $80.00,” is clearly false, as the record conclusively shows that a much larger sum had been paid plaintiff. Plaintiff denies all knowledge of this entry. Even where the false statement has been sworn to, it has been held not to void the policy in certain instances. Tiefenthal v. Insurance Co., 53 Mich. 306 (19 N. W. 9) ; Knop v. Insurance, supra; Walker v. Underwriters’ Ass’n, 142 Mich. 162 (105 N. W. 597).