Mezeix v. McGraw

PeytoN, O. J.: Claudius Mezeix on the 10th clay of September, 1862, at the city of Natchez, in the county of Adams, in this State, made his promissory note for $2,400 payable to Patrick H. Mc-Graw one year from date ; and on the 10th clay of Septern110 ber, 1862, the said Claudius Mezeix and. Justine his wife, executed a deed of mortgage to said Patrick H. McGraw on certain land situated in said county of Adams, to secure the payment of said note. In the year 1865, the said Claudius Mezeix departed this life, leaving a will by which he gave to his said wife; Justine Mezeix, all his property, real and personal, and appointed her executrix of his said will. The said Patrck H. McGraw filed his original bill of complaint to the October term of the chancery court of said Adams county, 1867, against the said Justine Mezeix for a foreclosure of the said mortgage, and sale of the property therein specified, for the payment of said note and interest. The defendant appeared and demurred to the bill for want of equity upon its face, which demurrer was overruled by the court, and the defendant then answered the bill setting up therein certain proceedings in the military court at Natchez as a defense to the bill. At the October term, 1868, of said court, by leave thereof, the' complainant filed an amended bill, and without any legal notice thereof to the defendant, or service of process upon her to appear and answer the same, the court proceeded to a final hearing of the cause, without an answer to the said amended bill, or taking the samepro confesso for want of an answer, and ordered a reference to the clerk to take and state an account of the principal and interest due complainant on said note, and that he report the same to the court, and in compliance with said order of reference, the clerk ¡reported that the sum of $3,584 66 was due complainant, of principal and interest on said note. To this report the defendant filed her exceptions on the ground that the note was prima facie evidence that the payment thereof was to be made in Confederate treasury notes, and there was no proof of the value of Confederate treasury notes. The exceptions were overruled and the ‘report confirmed, and the court decreed that the defendant pay to the complainant the amount thus found due him within thirty days, and that in [111] default thereof, the property be sold and the proceeds applied to the payment of the money found due to the complainant. From this decree the defendant brings the cause to this court by writ of error’, and makes divers assignments of error, of which, in the present attitude of the case, it is deemed necessary to notice only the second, fourth and fifth, which are the following: 2. The court erred in proceeding to make an interlocutory order for an account immediately after said bill was amended, without notice to defendant, or an opportunity for her to answer said bill as amended. 4. The said court erred in directing a reference to a commissioner to report an account of principal and interest due complainant upon the note and mortgage. The said note being dated September the 10th, 1862, and due at twelve months, and payable prima facie in Confederate treasury notes; whereas said order of reference, if made at all, should have been for the value of Confederate money with interest. 5. The court erred in overruling the defendant’s exceptions to the report of the commissioner and also in confirming said report. By the English chancery practice, if the amendment of the bill be before answer, it seems that no additional subpoena need be served upon the defendant, but he is entitled to the full time for. answering, from the time when he is served with notice of the amendment. If the amendment be after answer, and a further answer be required, a subpoena must be served, but service on tbe defendant’s solictor is sufficient. 1 Daniels’ Ch. Fr., 427. Although it is the practice to call a bill altered an amended bill, the amendment is .in fact esteemed but as a continuation of the original bill, and as forming a part of it; for both the original and amended bill constitute but one record, so much so that where an original bill is fully answered, and amendments are afterwards made, to which the defendant does not answer, the whole record may be taken pro confesso generally, and an order-to take the bill pro confesso as to the amendments only, will be irregular. 1 Daniels’ Ch. Pr. 403. [112] There the complainant amends his bill after answer, if a futrher answer of the amended bill becomes necessary, and is not waiyed, the defendant must put in a further answer to the amendment; or the complainant will be entitled to an order taking the whole bill as amended as confessed. Trust and Fire Insurance Company v. Jenkins, 8 Paige, 589; Todder v. Stiles, 16 Georgia, 1. A rule of the chancery practice in this state, requires that whenever the complainant shall file.iin amended bill or supplemental bill, he shall give notice thereof in writing to the opposite party or his solicitor, within twenty days after the same shall be filed; andnojw’o confesso on such amended or supplemental bill shall be taken without proof of such notice, unless process shall have been served upon the opposite party under the amended or supplemental bill. The amendments to the original bill were of such a character as to entitle the defendant to notice of them, either in writing or by service of process. The court below, therefore, erred in proceeding to hear the cause without giving the defendant an opportunity to answer the amended bill. And even had she been notified of the amendments to the bill, it would have been error to proceed to a final hearing of the case,, without having previously taken the bill, as amended, as confessed for want of an answer. Beville v. McIntosh, 41 Miss., 516. The statute of 1867 provides, that in cases founded on any promissory note, open account, or other contract for the payment of money, executed in this state after the first day of May, 1862, and before the 1st day of.May. 1865, shall be prima facie evidence that the payment was to be made in Confederate treasury notes, unless the contray appear on the face of said contracts. In this case the complainant’s claim is founded on a promissory note, executed in this state on the 10th day of •September, 1862, which is primafacie payable in Confederate-treasury notes, and as there was no rebutting or countervailing proof to show that the note was payable in any [113] thing else, the order of reference should have been for the value of Confederate treasury notes, with interest from the date, of said note, in United States currency. The court, therefore, erred in overruling the defendant’s exceptions to • the report of the commissioner, and in confirming said report. For these reasons, the decree must be reversed, and cause remanded for further proceedings in accordance with this • opinion. A petition for re-argument was filed, but a .re-argument was refused. *