Carey v. Hillhouse , 5 Ga. 251 ( 1848 )

By the Court.

Nisbet, J.

delivering the opinion.

This bill was filed by Edward Carey, assignee, against Daniel McDougald and others, to charge them, as stockholders in the Planters & Mechanics’ Bank of Columbus. At the first term of the bill, leave was granted the complainant to amend, by adding new parties defendants, and time given foi: service; so also, at the next term following. Id pursuance of the leave to amend last granted, the complainant amended by inserting the name of Daniel P. Hillhouse as defendant, in the bill, immediately after the names of the persons already in it. A second original and copy of the bill thus amended, was 'sent to the county of Richmond, the residence of Hillhouse, for service, and with it a subpoena, which subpoena in its caption named, the original defendants, and did not name Hillhouse, and was addn-esjsed to the defendants. A copy of the amended bill with this subposna was served upon Plillhouse by the sheriff of Richmond county, as appeared by his certificate entered on the second original, duly by him returned to the Court in Muscogee county, where the original bill was filed. At the term of the Superior Court of Muscogee county next following the return of said second original, counsel for Plillhouse moved the Court that the sheriff’s certificate of the service of the same be annulled, and set aside, and Hillhouse be discharged, upon the ground that the service was made without a process, and without a prayer for a process in the original bill. 'Which motion was granted, and the certificate of service annulled, and Hillhouse discharged. To the decision, on this motion, the counsel for the complainant excepted.

The grounds occupied by the counsel for the defendant are, that he should be discharged—

1st. Because he was no party to the bill, there being no prayer for process against him, and farther, he being no where named in the bill as a party defendant.

2d. Because if a party — and if there is in the bill a prayer for process against him, yet no subpoena was in fact served upon him. In support of the last ground, they say that his name is not found in the subpoena at all; it is not directed to him; that the sheriff of Richmond, therefore, had no authority to serve him, and having served him, the act of service was unofficial, and the service a nullity. The conclusion they draw is, that Hillhouse is not legally before the Court, and must therefore be discharged.

[1.] To use the language of an English Chancellor, it is not every one that a party plaintiff chooses to ' tails about or to complain against, that is a party defendant to a bill. No persons are parties defendants to a bill in Chancery, except those against whom process is prayed, and who are specially named and described in it as defendants. It has been held that persons may be made parties by a clear statement in the bill to that effect, without a prayer lor subposna against them. But I have no doubt but that, by a great preponderance of authority, to make one a party, there must be a prayer for process against him. That is the established test. Brasher vs. VanCortlandt, 2 J. Ch. R. 245. Verplanck vs. Mercantile Ins. Co. of New York, 2 Paige R. 449, 450. 1 Marsh, K. R. 594. 2 Dickens R. 707. Fawkes vs. Pratt, 1 P. Will. R. 592. 15 Vesey, 164. Story’s Eq. Plead, sect. 44. 1 Daniel’s Ch. Prac. 444, 445.

[2.] We are then to enquire whether there is in this bill, a prayer for process .against the defendant, Hillhouse, as it stood when amended by the insertion of his name. The amendment becomes part and parcel of the original bill; the original bill and amendment constitute but one record, certainly in this case, where the amendment was as to a party — where the bill was yet incomplete — where no issue had been formed, and it was yet at its appearance term. Amendments refer, generally, to the time of filing the original bill. 1 Daniel’s Ch. Prac. 455. Vose vs. Glynn, 2 Dick. 441. Hurd vs. Everett, 1 Paige, 124. Walsh vs. Smith, 3 Bland. 9, 20. O’Grady vs. Barry, 1 Irish Eq. 56. Story Eq. Plead, sects. 332, 885.

In reference, then, to the question before me, Hillhouse occupies the same position with the original defendants. If there is a prayer for process against them, there is, also, a prayer for process against him. The bill seeks a recovery in favor of the plaintiff, a judgment creditor of the Planters & Mechanics’ Bank of Columbus, out of the stockholders of that institution, under its charter. It names cerlain individuals, and describes them as stockholders, designating the number of shares held by each; it charges them as rateably liable, under the charter, and prays a decree against them. Among the individuals thus named and described, in the am ended bill,is the defendant, Hillhouse. He is, therefore,without any doubt, clearly named and described as a defendant. The bill being one and indivisible, all the prayers in it apply to him, as much as they apply to the other defendants. What, then, is the prayer in the hill for process ? It is that a subpoena be granted, “directed to the aforesaid stockholders, hereinbefore mentioned and, stated, or to theirlegal representatives, commanding them and each of them, to be and appear, &c.” Here, then, is an unequivocal naming and description of the defendants, and a prayer for subpoena, against each of them. So that, we consider it clear, very clear, that in this bill there is a prayer for process against Hillhouse, and that the decision of the Court cannot be sustained on the first ground occupied by counsel for the defendant.

Can it be sustained upon the second ground occupied by him? Let us see, again, what are the facts ! They are brief. A copy of the bill, as amended by the insertion of the name of the defendant, Hillhouse, is served upon him by the sheriff — and with it a subpoena, duly signed and sealed and attested, and which stated the case as it sounded before the amendment. Mr. ITillhouse’s name does not appear on it as a defendant — and the defendants are required to appear and answer, &c. The question is, was this a sufficient service of a subpoena, upon Hillhouse?

The counsel for the plaintiff in error, tell us, that under the Act of 1799, it is not necessary, at all,'for the defendant to be served with a subpoena. Tliey contend that it is enough, if he is served with a copy of the bill. The 5 th section of that Act defines, to a certain extent, the Chancery jurisdiction of the Superior Courts; it declares that the proceedings shall be by bill, and such other proceedings as are usual in such cases, until the setting down of the cause for trial. It further enacts, that a copy of such bill shall be served upon the opposite parly, at least thirty days before the filing of the same in Court; and that the party against whom such bill shall be filed, shall appear and answer to the same, at the next Court; and if he, she or they shall fail to do so, the facts in said bill shall be taken pro confesso, and the Court may proceed to decree, as to justice shall appertain. Prince, 447. It is argued, with much plausibility and. force, that upon service of a copy of the bill, the defendant is required to answer, and if he fail to do so, although he might not be liable to a process for a contempt of the Court, for not appearing, yet he would be liable to have the bill taken, as confessed, and to a decree. In England, it is not necessary that the defendant be served with a copy of the , bill; he is there required to appear and answer by service of a subpoena. The service of a copy here, it is claimed, is intended to be in substitution of service by subpoena there, so far as to authorize the bill to be'taken pro confesso. The Act, say the counsel, declares that a copy shall be served, and immediately thereafter, declares that the defendant shall appear and answer, and if he fail to do so, the bill shall be taken pro confesso, and the Court shall proceed to decree. This idea derives strength from the character and office of a subpoena. We call it a process, but in strictness it is not. A process is directed to the officer of the Court, commanding him to do certain things. A subpoena is directed to the party. Hence, it is not indispensable that it be served by the sheriff; it may be served by any one. In that event, the proof of service would be different. The office of the subpoena is to notify the party that'the bill is filed, and that he is required to appear and answer, and abide the judgment of the Court, under a penalty. Some of the functions of the subpoena are fulfilled by a service of the copy. For example, the defendant is notified of the pendency of the bill, and of the ground and character of the plaintiff’s 'complaint. Being so notified, it may with reason be said, that is all that is necessary, to justify taking the bUlpro confesso. It is the privilege of the defendant, upon such notice, to come in and defend; if he fail todo so, it is his own default. What better security against the bill’s being taken pro confesso, would he have if he were subpoenaed 1 T o that end, the service of a copy of the bill is far more effectual than a subpoena; for by that service he is put in possession of the whole of the plaintiff’s case, thirty days before the sitting of the Court. We should think with the counsel for the plaintiff in error, but for the previous declaration in the Act that the proceedings shall be by bill, and such, other proceedings as are usual in such cases, until the setttng doion of the cause far trial. The other proceeding referred to are the proceedings which, in the English practice in like cases, were usually liad. A subpoena, in the English practice, was, at the time of the passage of the Act, a pai't of the proceeding in such a case as this, • before the setting down of the cause for trial. We conclude, therefore, that it was not the intention of the Legislature to dispense with • the subpoena, but in addition thereto, to require the service of a copy of the bill. The service of the copy, however, has a very material bearing upon the farther consideration of this case. "Without the service of a copy, we should hold the service of the subpcena in this case bad; with it sufficient. The copy served upon the defendant, describing him as a party defendant, and praying a subpcena against him, identified him as one of the defendants intended to be notified by the subpoena. The statements in the bill, and the statements in the subpoena, taken together, identify each as appertaining to the other, and the service of both is sufficient to require the defendant to appear and answer, at the peril of having the bill taken as confessed. Whether such service would be sufficient, in any given case, to subject him to a process for contempt, it is not necessary now to determine. If it is sufficient for the purpose indicated, the Court erred in vacating the certificate of the sheriff, and in discharging the defendant. The argument that, inasmuch as Hill-house’s name does not appear in the subpoena, the sheriff had" no authority to serve him, and therefore the service is illegal and void, is answered.in this, that it is not necessary that the service be official.

[3.] The sheriff can serve a copy bill and subpoena, as a private individual. No question-was made in this case about the sufficiency of the proof of the service. If there had been, and the official return had been held no proof of service by the sheriff, as an individual, still I apprehend that it would not have been proper to discharge the defendant; but the plaintiff would have been entitled to make proof of the service. Trabee vs. Holt, 2 Bibb, 393. Hoye vs. Penn, 1 Bland. 29. Taylor vs. Gordon, 1 Bland. 132. West vs. Smith, 1 Green Ch. 309. 1 Daniel’s Ch. Prac. 499, note 2. The Statute, in requiring a copy of the bill to be served upon the defendant, unquestionably looked to the benefit of the defendant. It intend ed to put him early and fully into p ossession of the plaintiff’s case, that he might be at once in a situation tomake his defence. Conceding this, yet when that is done, the plaintiff is entitled to some reciprocal benefit therefrom. The least that may be claimed for him, would seem to be the advantage of considering the defendant as served, for the purposes of his appear* anee and answer ; when particularly in addition to the copy bill, he has also been virtually served with a subpeena. The Court of Chancery must look to substance rather than form. There is no solid reason in the objection to this service, so far as we hold it good. To all reasonable intents and ends, the law has been complied with. It is contended that this service is wholly insufficient for any purpose. To test that position, suppose the defendant had appeared and a decree were had against him, cduld it be set aside upon petition I It ought to be, if the defendant’s position be a sound one. But I am sure it could not be. If this service be wholly insufficient, then all subsequent proceedings would be irregular. An appearance would not cure the defect. The qase of the Executors of Brasher vs. Van Cortlandt involves princi* pies applicable to this case. The facts are ‘analagous, in part, to the facts in this case. A bill was filed against certain persons as a committee of a lunatic, and the prayer for a subpeena was against them as such. The subpeena was issued against them individually, the Clerk omitting to describe them as a committee of the lunatic. The solicitors of the defendants were furnished with a copy of the bill, and the subpoena was served. The defendants appeared, and a decree was had. Afterwards, they filed a petition to set it aside, alleging that the real defendants in the bill, to-wit, the committee of the lunatic, had never been served, and that all the proceedings were irregular. Chancellor Kent turned them awayHe laid stress upon the fact that they had been furnished with a copy of the bill, and considered the process and appearance as applicable to the bill. What would have been his order in the case, had the exception been taken upon the return of the subpoena, does not appear. He might have ordered an amendment and a service de novo ; he might have ordered them to answer, or he might have discharged them. He, however, held the service and appearance sufficient to justify the decree against them. He says — “ I apprehend the defendants are too late with this objection, whatever consideration might be due to it, if it had been made on the return of the subpoena and the entry of appearance. There was no bill filed by the complainants but the one -in the suit against the defendants, as committee, in which the existence and history of the debt against the lunatic; and their neglect or refusal to pay it after admission of its being due, is particularly set forth. A copy of this bill was taken by the solicitors for the defendants before their appearance. If the subpoena was not properly filled up according to the prayer in the bill, they and were not properly entitled by their addition, why was not the objection made in season? They were informed of the contents of the bill. I shall consider the process and, appearance as sufficiently applicable to that bill, and the defendants shall not now be perrpitted to deny it. It is not to be tolerated by this Court, which is governed by substance and not by forms, that a party, after taking a copy of the bill on which the subpoena had issued, and in which he was properly entitled, and enteringhis appearance without his addition as committee, shall lie by silently and suffer the plaintiff to go on unsuspectingly, step .by step,down to a final decree, on the ground of a valid appearance, and then startup with the objection that he had never appeared in the suit.” 2 John. Ch. R. 247, 8.

The serving the defendants’-solicitors with a copy of the bill, was not necessary by law in New York, as it is here. I cannot but think that Chancellor Kent, with our Statute before him, would have held the service in this case sufficient upon return of the subpoena. The point settled in the last case, for which I refer to it hero, is, that the service of a copy of the bill in which the defendant, to-wit, the committee of the lunatic, is named and described, and the service of a subpoena with it in which the defendant, to-wit, the committee of the lunatic, is not named, identifies theprocess with the bill. Chancellor Kent so held.

[4.] So here, the service of a copy of the bill in which Mr. Hillhouse is named and described as a defendant, with a subpoena referring to that bill, in all its descriptive parts, yet not containing the name of Mr. Hillhouse, identifies the subpoena with that bill. This being settled, and looking to the provision of our own statute relative to a service of the copy, we think the service was sufficient to require the defendant to appear and answer, and that he ought not to have been discharged. With a view to the symmetry of the record,we direct the subpoena to be amended by inserting in the caption, the name of Mr. Hillhouse as one of the defendants.

Let the judgment be reversed.