Miller v. McGalligan , 1 Greene 527 ( 1848 )

Opinion by

Hastings, C. J.

This was a proceeding in chancery in which the record shows that Burns and McBride filed their bill to foreclose a mortgage executed by Miller. That McGalligan was made a party defendant by an amended bill. That Miller demurred for want of parties, and thereby caused McGalligan to be made a party defendant, and never answered. That McGalligan answered,-and setup fraud in complainants in procuring the assignment from McGalligan to Burns and McBride, McGalligan being the original mortgagee, and with his answer exhibited interrogatories to complainants under the statute, and the bill was dismissed according to the statute. That thereupon the court rendered a deoree of foreclosure in favor of McGalligan against Miller. Miller sues out of this court his writ of error, and assigns for error the rendition of said decree. It is contended by defendant in error, that Burns and McBride were the trustees of McGalligan in equity, their assignment being fraudulent. Suppose this to be true, Miller was never summoned to answer a bill describing such an interest, or to respond to parties complainant of such a character. Had Burns and McBride filed a bill describing their character as trustees, or had McGalligan filed a cross-bill, setting out his interest in the matter in controversy, and called upon Miller to respond, and he had been in default, a decree of foreclosure would have been correct.

But when the decree was rendered, Miller was in default to no one, the bill having been dismissed ; and therefore the decree was erroneous. The bill was dismissed upon the motion of McGalligan, and having so summarily disposed of the parties complainant, it would be highly iniquitous to permit him to turn upon his co-defendant, and cause a decree to be rendered against him in his own favor.

It is true that the power of the chancellor will not be questioned, to render a decree according to the very right of the parties, whether complainants or defendants, when the parties have been properly brought into court; but such a decree could not be rendered until the plaintiff in error had been made to stand as an adversary party by motion, cross-bill, or otherwise to McGalligan. The decree will therefore be reversed.