Thornton v. Hightower , 17 Ga. 1 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

At May Term, 1852, an order was granted by the Superior' Court of Muscogee County, in reference to amendments of the bill filed by the defendant in error, (the complainant in the Court below) against the plaintiffs in error. At November Term of said Court thereafter, but as late as the 22d day of December, to which time the Court had continued in session, the defendants to said bill moved the Court to set aside said order on various grounds.

[1.] These grounds were, in our opinion, rightly over-ruled. They were in the nature of technical objections, and came too late. If good at all, they should have been made at an earlier period. The Court commenced its session on the first Monday in November, and it was not until the 22d day of December thereafter, when the complainant was about moving in his case, that these objections were made to an order which had been taken at a previous term of the Court. The defendants were required, by that order, to appear and answer said amendments, on or before the first day of the next term of the Court, with the liberty, also, of pleading, or demurring, or of doing both. That was the time at which they should have presented these objections, if they desired to rely upon them — the time at which they were called upon to answer; when the complainant would have had the earliest notice of their objections ; and if some or all of them had been sustained, would have had the whole term in which to shape his course accordingly. Any other practice would allow unfair advantages to be taken, and might be productive of improper delays.

[2.] The defendants then asked leave to demur, plead and answer to said amended bill, instanter. And they presented certain pleas to the effect: 1. That the matter contained in said amendments should have been presented in the shape and form of a supplemental bill. 2. That A. B. Ragan was improperly made a defendant by said amendments, and should have been a party complainant to said bill. 3. That there were numerous stockholders of said bank, solvent and within the jurisdiction of the Court, of equal liability with those made defendants, who had not been made parties, .and who were necessary parties.

The leave thus asked was refused by the Court; and properly refused, in our opinion. As the case then stood in Court, with the order of the last term in force, requiring the defendants to answer, plead or demur on the first day of the next term, with the fact before the Court, that neither plea, demurrer nor answer had been filed in pursuance of the order, and with no excuse rendered therefor, the parties appeared before the Court in default, if not in contempt; and they had no right to the indulgence or privilege which they craved. ' It would have been a very bad practice, indeed, which accorded it to them.

[3.] Touching one of these pleas, we desire to make a few observations which may possibly save trouble hereafter.

It was insisted that all the stockholders of said bank, solvent and within the jurisdiction of said Court, of equal liability with said defendants, per share, should have been made defendants to said bill; and that the cause could not proceed without them.

This is just one of the cases where, according to well settled rules, a complainant may proceed against a portion of many defendants of equal liability. Such is the doctrine held in 2 Eq. C. Abr. 166, and to the following effect: “ Where the parties liable to the demand have been very numerous, the Court have, in like manner, permitted a bill to be filed against a few of them, to compel the payment of their aliquot shares, without bringing the others before it. Thus, where fifty persons join together to form a bank, and to procure an Act of Parliament to establish and settle it, and were at equal charges, and about two hundred and fifty subscribed to raise a fund, but the speculation turned out unfavorably, whereby a loss of about ¿£G000 was sustained by the first proprietors, who thereupon exhibited their bill against sixteen of the two hundred and fifty subscribers, to compel them to bear their proportion of the loss; it was moved that the bill should abate for want of parties, but over-ruled, for the plaintiffs only prayed that the defendants might bear their proportion of the loss, which would appear before the master as well as if all the two hundred and fifty. subscribers rvere there, and so, it could be no predjudice to those defendants.” See, also, to the same effect, 1 Eq. C. Abr. 73. Do. 165. 1 Dan. Ch. Pr. 365.

[4.] It appears, by this record, that no order was taken by the Court against these defendants, on the day in question, but on the ensuing day they appeared in Court, by their Counsel, and presented excuses for their default, by which they sought to purge themselves of the imputed contempt. And then they asked leave to plead, answer or demur to said amendments, and that the bill might not be taken pro eonfesso against them. These excuses were not deemed sufficient; the permission was refused, and the Court .proceeded to réquire proof of service, in order that the bill might be taken pro eonfesso against all defendants served.

To ascertain whether or not this ruling of the Court was correct, let us look a little into the character of this proceeding, to take a bill pro eonfesso. The object of such proceeding, in a Court of Equity, is ,to place the complainant, in a situation by which he shall not lose his remedy for want of the answer, for which he is dependent upon the conscience of the defendant. It may be . said to be used by way of punishment for contempt; but it is not the peculiar punishment for such contempt —attachment and committal to prison is that remedy. But even these have direct reference to the extraction or obtaining of-an answer, as that which, is the thing needful to the justice of the case. Accordingly, where the accurate and regular forms of Chancery practice are pursued, such as were of force in England at the time of our Adopting Statute, the defendant who appears and refuses to answer is first committed for the contempt; and if he persists in refusing, his property, real and personal, may be sequestrated. In the meantime, he will be brought to the bar and admonished of the peril of persevering, and if he still refuse, to answer, the bill will be taken as confessed against him. (1 Harr. Ch. Pr. 203. 2 Ch. Ca. 237.)

Under the rules, as they now stand in England, they having been amended during the reign of William IV. the recusant defendant must be first committed for the contempt, to the Fleet prison; he may then be brought to the bar by habeas corpus; and if he still persists in his refusal, the Court will then make an order that the bill be taken pro confesso. Rut even after this, the Court may receive the answer. It will not, as matter of course, be a sufficient ground for setting the order aside; “ yet, wherever an order of this kind has been made, and the defendant comes in upon any reasonable ground of indulgence, and pays the costs, the Court will attend to his application, unless the delay has been extravagantly long.” (Williams vs. Thompson, 2 Brow. C. C. 280. 1 Dan. Ch. P. 695.)

We have dwelt on all this, for the purpose of showing that the great point to be gained, where a defendant refuses to answer, is the ansiver ; that the efforts of the Court are mainly-addressed to this point; that other punishment than that of taking the bill as confessed, will first be resorted to, and that even after the order taking the bill confesso is-entered, the defendant will be allowed to file his answer; upon any reasonable ground of indulgence. Now we can spare but few words in order to apply these principles to the case at bar, nor can many words be needed.

We will only add, that under ,the circumstances of this case, taking into consideration the fact that the Court had not deemed the contumacy of the defendants sufficient to authorize an attachment for contempt, and taking into consideration the excuses which were tendered by the Counsel for the defendants, especially the illness of the leading Counsel, Col. Holt, we think that the Court should have considered this showing as a “reasonable ground of indulgence,” so far as to let the answer -come in upon it. Still, might the Chancellor have visited an inconvenience or penalty upon the defendants for not having ■answered. Already had they been rightly refused the privilege of demurring or pleading to the amendments; and the Chancellor could, and perhaps should, have admitted the answer upon terms; for we are told that when the order is discharged for taking the bill fro cowfesso, the Court will “ require to see the answer proposed to be put in, in order that it may form a judgment as to the propriety of it, and will not put the plaintiff to the peril of just such an answer as the defendant shall think proper to give.” (Hearne vs. Ogilvie, (11 Ves. 77.) In this way, too, the Chancellor could have prevented delay, and have secured to the complainant all the rights of which ho would have been possessed, had the answer been filed in time.

Such would have been the subtantial justice of this case, in our opinion, and such should have been the direction given to it.

This disposition of the case renders it unneccessary for us to consider the question made upon service, on various defendants, as preliminary to the order which was granted, taking the bill fro confesso against them.

Judgment reversed.