Corning v. Baxter

Citations

• 6 Paige Ch. 178
• 1836 N.Y. LEXIS 289
• 1836 N.Y. Misc. LEXIS 86

Syllabus

<p>There can be no decree made against a non-resident defendant who does not appear, and who has not been personally served with process, but upon the report of a master as to the truth of the allegations contained in the bill. And where the object of the suit is to obtain payment of money due from the absentee, or which is a lien upon property in which he has an interest, the complainant must also be examined as to any payments whiph may have been made.</p> <p>The reference and examination as to the rights of an absentee must be had, although there are other defendants who appear and contest the claim of the complainant, and who have a common interest with such absentee it? the defence of the suit.</p> <p>An order of reference as to the rights of an absent defendant may be entered of course, under the 25th rule, at any time after the bill has been taken as confessed against him, although there are other defendants who appear and contest the suit.</p> <p>But an order of course in a mortgage case, under the 134th rule, to ascertain the rights ofinfants orabsentees and also to compute the amount due upon the mortgage, cannot be entered if any of the' defendants have appeared and contest the complainant’s rights as claimed by his bill.</p> <p>Where a reference to make preliminary inquiries preparatory to the hearing of the cause is necessary or proper, in a case in which the rules do not authorize the entry of a common order, where such reference is not assented to by alltbeparties interested therein, a special application must be made to the court, upon due notice to all such parties as have appeared in' the suit.</p>