Webster v. Hitchcock
| Decision Date | 25 November 1862 |
| Court | Michigan Supreme Court |
| Parties | James M. Webster v. Bethuel Hitchcock and another |
Submitted on Brief of Complainant, October 19, 1862
Appeal from Ionia Circuit in Chancery.
The bill of complaint set forth: That on November 19, 1860, Heman C. Palmer filed his bill against the defendants to foreclose a mortgage given by them: that defendants appeared, and no further proceedings were had prior to December 29, 1860, when said Palmer died, and Phebe A. Palmer was, in February following, appointed administratrix on his estate: that an order was made by said court July 24, 1861, substituting said administratrix as complainant in the case, with leave to amend the bill by substituting her name as such, and she afterwards, in March, 1862, without having so amended the bill, assigned the mortgage to the present complainant. The bill then avers that complainant is entitled to have the original suit revived against the defendants, and to have the benefit thereof, and of the proceedings therein, and that for this purpose the present bill ought to be taken as supplemental to the said bill of Henry C. Palmer. And it prays for answer, and that the said suit be decreed to stand and be revived accordingly, with leave to the present complainant to prosecute the same.
The present bill having been filed without a prior order of the court granting leave, and being signed D. W. Jackson as solicitor, instead of Blanchard & Jackson, the solicitors in the original suit, defendants made a motion that the bill be stricken from the files; which motion was granted by the court. From this order the complainant appealed.
Order vacated, and the cause remanded to the Circuit Court in Chancery for further proceedings, and the complainant is entitled to his costs on the appeal.
D. W Jackson, for complainant.
Christiancy J.:
So far as the bill seeks to revive the original cause of Heman C. Palmer, against the defendants, which had become abated by his death, it was entirely unnecessary. The order of July 24th,
1861 substituting the administratrix as complainant, of itself, operated as a revivor: and no actual amendment was necessary to give it that effect. But by the assignment of all her interest to the present complainant after the suit was so revived, the assignee became a necessary party complainant, and the suit could no longer be prosecuted in her name after the assignment should be brought to the notice of the court: Wallace v. Dunn, Walker Ch., 416. If the assignment did not operate strictly as an abatement of the suit, its effect was much the same, as it left no party...
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