McDonald v. McDonald
| Decision Date | 10 November 1880 |
| Citation | 7 N.W. 230,45 Mich. 44 |
| Court | Michigan Supreme Court |
| Parties | MCDONALD v. MCDONALD and another. |
A defendant in a foreclosure proceeding, who is advertised as a non-resident, and against whom judgment of default is entered, has an absolute right to answer upon petitioning so to do, and paying or securing such costs as the courts shall adjudge, and a court has no power to determine the merits of his defence on affidavits.
Appeal from Delta.
Gibson & Parkinson, for complainant.
E.P Royce and Ed. E. Kane, for defendants and appellants.
The bill in this cause was filed in the county of Delta to foreclose certain mortgages. The bill was filed June 19 1877, and the defendant Booth was advertised as a non-resident, and never served with process. His default was entered and a final decree rendered. The bill contains distinct averments showing the title of the lands to have become regularly vested in Booth by record conveyance. In March, 1880, the decree not having been carried out by sale, Booth filed his petition and noticed a motion for leave to appear. The complainant was allowed to introduce his own affidavit, to the effect that Booth had told him that he had no personal interest in the premises, and had only held them for the benefit of another defendant, and setting up various dealings and statements which were intended to show the want of equity in Booth's claim to defend. Booth's petition was accompanied by some affidavits indicating his position, but the circuit court refused to allow him to come in. From that order he appeals.
By section 5127, Comp.Laws, it is provided that except in divorce cases any defendant brought in by publication may petition to be heard, and "the party so petitioning shall be admitted to answer the complainant's bill upon paying or securing to be paid such costs as the court shall adjudge." This provision is positive and unqualified and the right is absolute. The court has no power to decide defendant's equities on affidavit, or in any way except in a hearing on the merits. The title of defendant is necessarily put into the controversy by the bill. In the present case complainant has gone so far as to aver its precise character. It is only because of an averment that he had or claimed title that complainant could be justified in impleading him. If having title he should be left out, the foreclosure would fail.
If complainant is confident that...
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