Unknown County MI Archives Court.....Higgins, V. Carpenter 1837
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 7:48 am

Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY.
THIRD CIRCUIT.


Higgins and others v. Carpenter and another.

Waiver of default. A defendant who had defaulted the complainant for failure 
to serve a copy of the hill, afterwards filed his answer and moved to dissolve 
an injunction. Held, a waiver of the default. (a.)

Motion for decree. Applications for final decree must he made at a general 
term, even though they be based on a default.

This was an application at a special term, for confirmation of a decree to 
dismiss the bill.

H. N. Walker, for defendants, at a special term, on affidavit of the entry of 
an order for service of copy of the bill in 15 days, as required by rule 20 of 
this court, and of the due service of notice of the order, and also stating 
that no copy of the bill as required by the rule had been served, and that 
defendants have entered a decree in vacation with the register of the court, 
dismissing the bill with costs, now moved for the confirmation of the decree 
dismissing the bill.

B. F. Cooper, for complainants, produced an affidavit, from which it appeared 
that the defendants, after the entry of the decree dismissing the bill, had 
moved the court for a dissolution of the injunction on the bill and answer 
served upon him since the entry of the decree dismissing the bill.

He insisted that by the practice of this court, under rule 17, a defendant may 
answer either with or without the service of a copy of the bill. If he chooses 
to save the expense of a copy of the bill, by resorting to the pleadings on 
file in the register's office, he can do so. If he claims a copy of the bill, 
he may compel the service of a copy by virtue of rule 20. That rule is one for 
the defendant's accommodation in answering; and if subsequently to the entry 
of an order for service of a copy, he accepts a service for any purpose, the 
object of the rule is answered, and the order is waived.

If the order requiring service of a copy of the bill were not so waived, the 
motion to dissolve the injunction on the bill and answer served after the 
decree to dismiss was a waiver of that decree, in accordance with the rule 
which waives an irregularity, by taking proceedings in the cause subsequently 
to it, without taking advantage of this irregularity. (4 Paige, 288, 439; 2 
Johns. Ch., 242; 5 Ib., 191.)

The Chancellor.—The defendants having subsequent to the default filed their 
answer, and based thereon a motion to dissolve the injunction, have waived the 
right to dismiss for want of service of a copy of the bill.

Further: This being an application for a final decree in the cause, should be 
made at a general term. (Rose v. Woodruff, 4 Johns. Ch., 547.)

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(a.) See Brooks v. Mead, Wal. Ch., 389.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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