Mondell v. Shafer

Robinson, J. delivered the opinion of the Court. The Code provides that whenever a defendant has been summoned, and fails to appear or to put in an answer, the Court may, upon the application of the complainants, pass an interlocutory decree and direct a commission ex parte to issue to take testimony to support the allegations in the bill; and the testimony thus taken shall have the same effect as if taken in the usual way on answer, and the Court shall proceed to a final decree in the cause, in the same manner as if the defendant had appeared and put in his answer. See. 115, Art. 16, Code. In this case the defendants, now appellants, were summoned hut failed to appear, and on application by the complainant, an interlocutory decree was passed, and an ex parte commission was issued to take testimony.

On the 17th of October, 1876, the testimony taken under the commission was returned, and the defendants still not appearing-, the case was set down under the rules of the Court for hearing, and on the 18th of November following, a final decree was passed. On the 17th day of August, 1877, being but one day less than nine months, an appeal was taken, and it is now contended that the decree below ought to he reversed, because the only proof offered before the commissioner was a paper purporting to be a certified copy of the complainant’s mortgage, to which the clerk failed to affix the seal of the Court. The Code however