Gordon v. Tyler

• Decision Date: 04 June 1884
• Court: Michigan Supreme Court
• Parties: GORDON and others v. TYLER and others.

19 N.W. 560

53 Mich. 629

GORDON and others v. TYLER and others.

Supreme Court of Michigan

June 4, 1884

The filing of the bill is the commencement of the action, and if a defendant dies before appearing, an original bill is not necessary to reach his representative.

Appeal from Bay.

Camp &amp Brooks, for defendants.

CAMPBELL J.

Complainants filed this bill to enforce a claim, by way of mortgage, upon a saw-mill and lot in the village of Sterling, in Bay county. The case on which they rely is alleged to be substantially as follows: In 1873 complainants and Luther Gordon, deceased were interested in lumbering and lands, and, among other property, owned a saw-mill at Sterling, built upon property leased to them by one Morehouse, who lived at Rochester, New York, while James and Luther Gordon had interests and did business at Brockport, New York. After operating this mill awhile, the firm sold it to Rufus and Edwin Whipple for $10,000, payable in sawing, but title was to be retained till paid for. In 1876 the mill burned up. At this time it had not been fully paid for. Arrangements were then made for rebuilding the mill, and, in order to accomplish this, it was arranged that the Gordons should furnish money and other help, and Morehouse, who was desirous to have it rebuilt, was to make an absolute conveyance, instead of a lease, and the title was to be put in Luther Gordon's name, to secure the repayment of what should be due the Gordons for the original purchase and further advances. This conveyance was made and advances of various kinds furnished and now the chief contention is whether the whole became a private matter of Luther Gordon's and not of the firm's. The Gordons subsequently dissolved partnership and in the final arrangement a claim of the firm against the Whipples was divided, and the complainants were given one-half of it, which is the claim now in suit. The whole claim when divided was $3,024.08, which consisted of a balance of $1,196.46 on the original purchase price of the mill, the remainder being advances. The Whipples sold to Luther Gordon their remaining interest in the mill for $2,500. He subsequently sold to defendant Tyler for an alleged price of $4,500, a part of which was paid to Luther Gordon, and a part to defendant George C. Gordon, after this suit was begun. Just when these payments were made is not averred in Tyler's answer; and he does not there aver that any of them were made without notice, although he denies notice at the time he purchased. The court below dismissed the bill, and complainants appeal.

A preliminary objection is made that there is no case in court at all. This objection is put upon the ground that the suit is prosecuted as one which has been revived, when it is no such suit. The objection did not strike us upon the hearing, and does not now. We shall merely refer to it.

The original bill was filed against Luther Gordon and Tyler on the twenty-first day of March, 1881, and subpoena issued, which was not personally served. In September 1881, a petition of review was filed, and on the third of October, 1881, an order of review was made. A subpoena was subsequently issued against the present defendants, and their appearance was entered, with an order for copy of bill. In January, 1882, a motion was made to set aside the service and appearance, and dismiss the bill, chiefly on the ground that the bill, as served, did not make the administrator a party, but was against Luther Gordon. This motion was denied. Defendants then answered, issue was joined, and testimony taken. The basis of this objection is that until a defendant has appeared the suit cannot be treated as having actually been commenced against him, so that if he dies before appearance it is as if he had never been in the case, and an original bill is necessary to reach his representatives. The citation from Daniell's Chancery Practice seems to favor that idea. But the authorities and practice have uniformly held that the filing of a bill is the commencement of suit for most purposes, and we can see no reason for adopting any exceptional rule in such cases as the present. An affidavit can always be made in a cause as soon as the bill is filed, and sometimes becomes necessary to support an order for the appearance of an absentee. A notice of lis pendens...