Stockley v. Stockley

• Court: Michigan Supreme Court
• Writing for the Court: DURAND, J.
• Citation: Stockley v. Stockley, 93 Mich. 307, 53 N.W. 523 (Mich. 1892)
• Decision Date: 27 October 1892
• Parties: STOCKLEY v. STOCKLEY et al.

53 N.W. 523

93 Mich. 307

STOCKLEY v. STOCKLEY et al.

Supreme Court of Michigan

October 27, 1892

Appeal from circuit court, Gogebic county, in chancery; NORMAN W HAIRE, Judge.

Suit by William W. Stockley against John and Emma Stockley and others for foreclosure of mortgage. Decree for complainant. From an order denying leave to file a bill of review, defendants Stockley appeal. Affirmed.

Button & Norris, for appellants.

T L. Chadbourne, for appellee.

DURAND J.

This case comes up on an appeal from a final order denying leave to file a bill of review, and only the facts relating to the points raised by the record will be stated. The bill of complaint was filed February 9, 1892, in the circuit court for the county of Gogebic, in chancery, by the complainant to foreclose a mortgage purporting to have been made on March 19, 1888, by the defendants John Stockley and Emma Stockley his wife, to secure to the complainant the payment of 40 notes of $100 each, and payable in monthly payments after that date. The other defendants were made parties as subsequent incumbrancers. On May 15, 1889, the defendants John and Emma Stockley caused their answer to be filed through one James B. Freeman, as their solicitor, in which, among other things, they claimed that the notes and mortgage were obtained without consideration, as well as by false representations on the part of the complainant. The other defendants were defaulted, and an order pro confesso entered as to them. After filing a replication, and on July 5, 1889, the usual order for taking testimony in 60 days was filed and served. August 20, 1889, notice of taking testimony of certain witnesses for complainant was served on the contesting defendants as well as upon their solicitor, and on the day set complainant's proof was taken. The 60 days limited for producing witnesses expired, and, although repeatedly urged, no steps were taken by the defendants or their solicitor to produce or examine any witnesses in their behalf, or to give any attention to the order which had been entered in reference thereto; and finally, on January 9, 1890, an order was entered, closing the proofs. The usual notice was served, and the cause brought on for hearing in the regular way before Judge DABOLL, presiding judge, and on January 27, 1890, a decree of foreclosure in the usual form was duly entered and signed. After this decree was made, the contesting defendants secured the assistance of M. M. Riley, an attorney at law, to assist their solicitor, Freeman, and his name was entered as solicitor in the cause for them. On the defendants' petition, Judge DABOLL, on February 7, 1890, made an order that all further proceedings under the decree be stayed until the first day of the next term of court, at which time, to wit, May 12, 1890, an order was made by Judge DABOLL, vacating and setting aside the decree and the order closing the proofs, and extending the time in which proofs might be taken, but, as expressed in said order, that same must be closed "twenty days before the first day of the term of this court, to be holden on the first Monday of August next." The defendants did not comply with this order; neither did they take any proofs; and on July 23, 1890, after the expiration of the time limited, complainant entered a second order in the case, closing the proofs, and served notice of the same, and again brought the case on for hearing, and on August 4, 1890, a second decree of foreclosure was entered in the cause, substantially the same as the first. After this last decree was entered, the defendants employed C. F. Button as solicitor, who, on August 16, 1890, filed a petition asking that a stay of proceedings might be granted until the first day of the next term of court, to allow the defendants to appeal to the court for a rehearing. The court granted the motion. At the next term of court, and on December 17, 1890, the petition to set aside the decree and for relief was...