Cornell v. McCann

Alvey, J., delivered the opinion of the Court. While the order of the 11th of August, 1871, consolidating the two causes, Dunkinson vs. Birdseye, and McCann vs. Dunkinson et al., may be very proper and expedient with a view to the final determination of the many conflicting claims involved, it is quite improper that such consolidation should take place as an arrangement between the complainants in the two bills, to effect an object the result bf which may and will likely be prejudicial to the rights and interests of some of the parties defendants. The bill filed by Dunkinson against Birdseye had been taken pro confesso, and a decree passed thereon for the sale of the property in controversy. After this decree, but before the sale had taken place, McCann filed his bill, to which both Dunkinson and -Birdseye are made defendants, and wherein is strongly controverted the claim set up by Dunkinson, and an injunction was prayed and granted, restraining the trustees, under the decree passed on Dunkinson’s bill, from proceeding to make the sale.

To the bill filed by McCann, Dunkinson answered, and, by his answer, denies and controverts the claim set up by McCann. It is also shewn that there are other parties, who are made defendants to McCann’s bill, asserting claims to and against the property, which may be found to be superior to the rights and claims, whatever they may be, of either Dunkinson or McCann. It was in this condition of proceedings that the petition of McCann was filed on the 11th of August, 1871, stating that an arrangement had been entered into by the litigating parties, subject to the approval of the Court, whereby the two causes should, be consolidated, the injunction dissolved, and a new decree passed in the case of Dunkinson vs. Birdseye, modifying the original decree passed therein, by associating another trustee with the two already appointed. On the same day of filing this ⁹⁷ petition, Dunkinson answered it, and, while altogether denying the claim of McCann, he assented to the arrangement stated in the petition.

Thereupon, forthwith, without further inquiry, and without the assent of, or hearing from, the other parties interested, the orders of the 11th of August, 1871, were passed; the first, being entitled as in the case of McCann vs. Dunkinson et al., consolidating the two causes, and dissolving the injunction; and the second, entitled as in the case of Dunkinson vs. Birdseye, modifying the original decree as proposed. To this last order was added a clause to the effect that the sale to be made should pass the title of all the parties to the two causes, and that the purchaser should acquire a title to the estate sold, free, clear and discharged from all'claim of any or all of the parties to both of the causes so consolidated. These orders were passed without the knowledge or consent of the appellants, and being non-residents, before they were required by the terms of the order of publicacation against them, to appear and answer the bill to which they were defendants. They were therefore, without an opportunity of disclosing the nature of their claim and title, and of resisting the passage of the orders iii question.

On filing their answer, which was in due time, the appellants, as did several of the other defendants, filed their petition, praying that the previous order or decree of the 11th of August, 1871, modifying the original decree of sale, should, for the reasons therein stated, be rescinded; but that petition, and the petitions of the other defendants, were all by the order of the 21st of September, 1871, dismissed with costs; and the trustees were directed to proceed with the sale. From this last order, as well as from the two preceding orders of the 11th of August, 1871, an appeal has been taken, and consequently all those orders are before us for review. ⁹⁸ It is contended, on the part of the appellees, that the modified decree of