Buck v. Fischer

• Decision Date: 01 February 1873
• Citation: 2 Colo. 182
• Parties: BUCK et al. v. FISCHER et al.
• Court: Colorado Supreme Court

2 Colo. 182

BUCK et al. v. FISCHER et al.

Supreme Court of Colorado

February, 1873

Error to District Court, Arapahoe County.

THE bill was filed by Amelia L. Fischer and C. F. A. Fischer against Wm. Buck, Karl E. Ammunn and A. K. Buck, to foreclose a mortgage given by the said William Buck to Frantz A Brocker. The bill was dismissed as to Ammunn, and the other defendants demurred. As originally framed, complainants appeared to claim in their own right, and the demurrer was sustained, apparently on that ground. The bill was subsequently amended so as to show the death of Brocker leaving the said Amelia his sole legatee and devisee, and that she, before the commencement of the suit, intermarried with the said C. F. A. Fischer, who was, at the time of the bringing of the suit, and at the time of making the amendment, her lawful husband.

There was filed with the bill, as an exhibit, the last will and testament of Brocker, from which it appeared that the said Amelia was appointed sole executrix of his estate, and also that he had bequeathed all his property to her, but there was not in the bill any allegation or statement that she was executrix, or that she sued as such. After the amendment, the bill was taken as confessed, and referred to a master to compute the amount due.

The other facts are stated in the opinion of the court.

Mr. E L. SMITH, for plaintiff in error.

Messrs. BROWNE & PUTNAM, for defendants in error.

BELEFORD J.

This was a bill in chancery, brought by Amelia Fischer, sole devisee and legatee of Frantz A. Brocker, to foreclose a mortgage. The respondents appeared, submitted to a rule to plead; made default, and thereupon the bill was referred to the master. Upon the incoming of his report, numerous exceptions were taken, and, among them, that the respondents had no notice of the time and place where the evidence was to be taken, and had no opportunity to cross-examine the witnesses, etc. They, at the same time, moved to have the cause re-referred to the master, so that the witnesses might be cross-examined. The exceptions and motion were both overruled. The first question to be considered is, whether the respondents were entitled to notice of the proceedings to be taken subsequent to the default. Mr. Daniel, in his Chancery Practice, vol 2, 1152, states that the general rule that all persons having an interest in the result of the proceedings should have notice of the attendance before the master, extends to cases in which a defendant, after appearance, has allowed the bill to be taken pro confesso, and a decree to be made for want of an answer. In such cases, as well as in cases where the decree has been made upon the answer of the party, it is necessary to serve him with notice upon all proceedings, in the master's office, by which his interests are in any way affected. It is to be remembered, however, that a distinction exists in this respect between decrees pro confesso, for want of appearance, and decrees pro confesso, for want of an answer. In the former, there being no one whom the plaintiff can serve, all the necessary proceedings must necessarily be ex parte. In New York the same decision as to notice is announced, and the same distinction maintained. Hart v. Small, 4 Paige, 551. It must be observed that in England, although a party who has appeared, but who has allowed a decree to be taken against him pro confesso, for want of an answer, is entitled to have notice of the proceedings against him under the decree in the master's office, he will not be entitled to appear upon such notice before the master, without previously obtaining an order for that purpose. The order will not be granted, except upon terms. In the case of Moore v....