Boyd v. Stone , 5 Wis. 240 ( 1856 )

' By tHe Qowrt,

Colb J.

Conceding that tbe complainant Boyd, Was entitled to take an order pro confesso as to tbe defendant 'Stone, for want of an answer’ to bis amended bill, wbicb 'amended bill bis counsel' insist was duly filed, and properly served'upon Stone’s' solicitor,’yet we do not see bow sucb an •unusual order as tbe one taken in tbis cause, and appealed from, can be sustained.

■■ Without alluding to other steps taken in tbe cause, other than those to wbicb it is necessary to-refer to-make our remarks understood, it will be' observed, that upon’the application of Stone, one of tbe defendants, tbe Circuit Court' by the order of October •5th, 1854, vacated and set aside- a previous order- pro confesso, entered in tbe suit, and all subsequent orders and proceedings in-the-cause.' As a--matter of course,--by tbis-order of foreclosure and sale of tbe mortgaged premises, tbe sale made under 'that decree, as well • as tbe order- confirming sucb salé, were wholly vacated and set aside; Such- was tbe object and scope 'of tbe order of 'October oth, 1854," if' its-legitimate effect u-pon -the-proceedings is-given to-it. -Upon tbis order "being granted, Stone filed bis answer to -the bill.’- After tbe answer was filed, tbe complainant-obtained leave'to amend bis bill within twenty days, as be might be advised; ■■ and by the order permitting this amendment, the - defendant- Stone-bad--thirty days after service of a copy of tbe amended bill, in wbicb to plead' or answer thereto. •

Material amendments, or 'what were' 'undoubtedly considered by tbe complainant as material ■ amendments, were filed to tbe original bill, and tbe defendant -'Stone was’required to answer these amendments under oath. A copy of tbe amended bill was served upon the solicitor of Stone. ■ True, a question was made, whether tbis service' was good, but we will only say upon tbat point, tbat we consider tbe service • entirely sufficient; tbe mailed copy having been sent off to Mr. Smith, at Milwaukee, before tbe complainant’s solicitors bad been notified by him tbat bis connection with tbe case bad ceased. He was tbe solicitor of record, and tbe only one tbe complainant could serve bis amended bill upon. Stone then neglecting to file bis answer within thirty days, the complainant was, unquestionably, entitled to an order tbat the bill as amended be taken as confessed, as to Stone, and a decree of foreclosure and sale of tbe mortgaged premises. It appears very clear to us tbat such was tbe proper and regular decree to be taken at this stage of the proceedings. But tbe complainant did not see fit to take such a decree, and have tbe mortgaged premises sold, but an order was entered vacating tbe order of tbe 5th of October, and confirming everything set aside and vacated by this last-mentioned order. By this novel practice, tbe complainant abandoned tbe case as it stood upon bis amended bill, and attempted to fall back upon a decree and sale made upon tbe original bill, which had been vacated and set aside. No authority has been cited in support of tbe practice pursued in this case, and we certainly know of none. We consider it irregular and improper. Let tbe complainant take bis decree upon bis amended bill, and proceed to a sale of tbe mortgaged premises. But it is suggested, if be does this, tbat tbe parties will be brought back to tbe same position they occupied before tbe order of October 5th, 1854, was entered; and tbat, therefore, a re-sale is entirely unnecessary. Such may or may not be tbe case. Tbe property may bring more, or it may not bring as much as it did at tbe former sale. We think it altogether probable tbat it will bring more. Such, undoubtedly, was tbe idea of Stone; otherwise be would not have taken steps to have tbe first sale set aside. But however this may be, Stone is entitled to have a re-sale of the premises, and an opportunity of protecting bis interests in the premises, at such re-sale, if be desires to, and has any such interests to protect.

The order of tbe court below is reversed, and tbe cause remanded for further proceedings according to law.