Glidden v. Andrews , 6 Ala. 190 ( 1844 )

GOLDTHWAITE, J.

One of our rules for the regulation of chancery practice, directs that, “ if it shall be discovered that there are subsequent incumbrancers, or parties in interest, not made parties to the cause, at any time before the confirmation of the sale in any mortgage suit, the complainant, or purchaser, shall have liberty to bring them before the court at that stage of the proceedings; and if they make no opposition by answer, their interest may be foreclosed without a re-sale of the property.” [Clay’s Digest, 615, §26.]

By the usual course of chancery practice, when a necessary party defendant is omitted in the original bill, and the omission is not discovered until the suit has progressed so far, either before or after the decree, that an amendment cannot be allowed, it then becomes necessary to cure the defect by a supplemental bill# [Mitford 33, 59; Goodwin v. Goodwin, 3 Atk. 370.]

The object of our rule is, to do away this necessity; and it, in effect, allows the amendment of a mortgage bill after the decree in such cases where the introduction of a new party will not affect the rights of those already before the court. Although the rule permits the new proceeding to be had at the instance of a purchaser as well as by the complainant, this does not introduce a new party<g:omplainant to the record. The suit progresses in the name of the original parties, with the addition of the new defendant.

, 2. The proper course of proceeding is, for the complainant or purchaser to file a petition to the chancellor, setting forth the omission of the party deemed a necessary one to enable full effect to be given to the decree, and that such party claims some interest in the mortgaged premises which is subject to the mortgage. On this petition, an order goes, of course, that the party named be made a defendant to the original bill, and process is awarded to bring him before the court. Upon this process, the same proceedings may be had as upon subpoena or publication; and the suit having been already heard as to the other defendants, it is' only necessary to hear it as to the new party, unless the interests of those already before the court will be affected by the decree. [Mitford 70; Jones v. Jones, 3 Atk. 217.] It will be seen by the concluding sentence of the rule, that no re-sale is necessary unless the new defendant insists on one by the answer.

3. The proceedings here do not conform to the view we have just taken of the rule, inasmuch as the process requires Glidden to appear and answer the petition, when he should have been served with a subpoena to answer the original bill.

No process having issued against Glidden on his thus being made a party to the original bill, no decree pro confesso, or otherwise, could properly be rendered against him. The process upon the petition was, as we have shown, a useless act upon which no ulterior proceedings could be based.

■ ■ The decree must be reversed, and the cause remanded for further proceedings.