#### John B. Alley *vs.*Washington D. Quinter.

Equity. No. 8597.

Decided June 21, 1883.

1. The rule that process must be prayed against a party in order to make him a defendant to a bill in equity is purely technical and has no application when its object is otherwise effectually attained; and, accordingly, the prayer for process is not indispensable when the

- bill sufficiently designates those intended to be made defendants, and process against them is actually issued.

2. A bill in^ equity, containing no prayer for process, was filed against L. and wife, who were named in the bill as “ defendants to this bill,” and process against them was actually issued and duly returned; Held, that notwithstanding the omission of the prayer for process, the parties were duly made defendants to the bill.

3. A decree *pro*confesso, based upon the non-appearance of parties defendant after an order of publication, should properly not be taken until after the expiration of the last day on which the parties are entitled, under the order, to appear ; but when such decree is taken on the last day allowed for appearance, and no appearance is subsequently entered and no defence attempted, and the final decree long postdates the expiration of the time for appearance, the decree *pro confesso*will be deemed to have been rendered conditionally : to be vacated in case of subsequent appearance, and to stand in default of such appearance within the designated time,

STATEMENT OE THE CASE.

On June 6th, 1888, Washington D. Quinter entered into a written agreement to purchase of John B. Alley a certain lot in the city of Washington, and the next day Alley tendered Quinter a good and sufficient deed in fee-simple to the lot. Quinter refused to accept the deed or to comply with his agreement, upon the ground that the title was not in Alley but in James M. Latta. Quinter admitted, however, that Alley’s title was good, provided the decree of the Supreme Court of the District of Columbia in a certain cause, wherein Alley was complainant and Latta and wife were defendants, was a valid decree binding upon Latta and wife

From the record and proceedings in the cause between Alley and Latta and wife, it appeared that on May 9th, 1882, Alley filed against the Lattas a bill in equity, alleging that Latta, as naked trustee, held the legal title to certain lots in the city of Washington (including that' involved in this cause), the equitable ownership whereof had been in one Sunder-land ; that Sunderland had sold his rights to Alley, with authority and direction to demand of Latta a conveyance of *391the legal title ; that Latta had since removed his residence from the District of Columbia ; and that, although requested, Latta (who never had or claimed any beneficial interest in the premises or any lien thereon), refused to convey to Alley : wherefore Alley prayed a decree commanding Latta and wife forthwith to execute, acknowledge and deliver to him a good and sufficient deed of the premises, and that in default of the execution, &c., of such deed by Latta and wife, a commissioner should be named by the court to make the necessary conveyance. Besides this prayer, the bill contained only a prayer for general relief, the prayer for process being omitted. At the foot of the bill, however, agreeably to the form of bill accompanying the printed rules of the court (which form contains the prayer for process also), was written : “ The defendants to this bill are James M. Latta and Elizabeth J. Latta.” Process was regularly issued against Latta and wife, and returned *“*not to be found.”

Upon the return of the process an order of publication was obtained, October 23, 1882, requiring the appearance of Latta and wife on or before the first rule day occurring forty days after the date of the order ; in default of which the cause was to be proceeded with as in case of default. The order was duly published ; and on December 5, the first rule day occurring forty days after the day of the order, a decree *pro confesso*was entered against the Latías, and the cause was referred to an examiner. Eventually, on February 19, 1883, a final decree was passed declaring the beneficial ownership of the property in question to be in Alley, directing its conveyance to him by Latta and -wife as prayed, and appointing a commissioner to make conveyance in case of their default so to do. Latta and wife did not convey as directed, and conveyance to Alley was subsequently made by the com-' missioner.

Upon Quinter’s refusal to comply with his agreement to purchase, Alley filed against him the bill of complaint in this cause, stating the facts as above set forth. In defence to the bill, Quinter pleaded defect in Alley’s title, because, in the suit against Latta and wife—

*3921. Latta and wife were not made parties defendant by-reason of the omission from the bill of complaint against them of a proper pi’ayer for *process;*and

2. The decree *pro confesso*against Latta and wife, taken on the order of publication, was taken before the expiration of the time allowed them by the order for their appearance.

Curtis J. Hillyer and Jackson H. Ralston for the complainant.

George E. Hamilton for the defendant:

The prayer for process was essential to the making Latta and wife defendants in the former suit. It is an elemeutary principle in equity pleading that those only are defendants against whom process is prayed.

And by the terms of the order of publication Latta and wife had all of the designated rule day within which to appear ; whereas the decree *pro cdnfesso*for want of such appearance was taken during the court hours of that day. The court by its own order had postponed its right to make such decree until December 6, at the least; and the entry of the decree on December 5 "was clearly improper and void.

Mr. Justice Cox

delivered the opinion of the court.

This is a suit for specific performance of a contract to purchase certain real estate. The defence is defect of title. The complainant’s ability to give a good title depends upon a decree rendered by this court, sitting in special term, in February, 1883, in a cause in which the present complainant, Alley, was complainant, and James M. Latta and wife were defendants. Against the validity of that decree the defendant, Quinter, sets up two objections on account of alleged irregularities or imperfections in the proceedings in the cause in which it was rendered, viz.: First, that the bill of complaint in that cause contained no prayer for process, and therefore Latta and wife, who were non-residents, were not properly made parties defendant; and, second, that the decree *pro confesso*against Latta and wife, preceding the reference for the taking testimony and the final decree, was rendered *393during, instead of after, the last day allowed for their appearance by the order of publication on which the decree *pro confesso*rested.

We do not think these objections well taken. The requirement of a prayer for process is purely technical, the object being solely to indicate those against whom the relief sought by the bill is desired. We have been referred to several cases in which the prayer was held indispensable, but on examination the holding in each of those cases is found to depend upon reasons special to the jurisdiction, and hot now having general application. As has been said, a complainant may in his bill name many persons concerned in the transaction out of which arises his supposed claim to relief ; and the object of the prayer for process is to designate which of all those so named are to be proceeded against for such relief. Besides this it has no special significance and possesses no potency ; the prayer of itself, without the issue and service in some form of process, will not suffice to make a party defendant. Dan’l Ch. Pl., 390, *n.*3. Such being the nature and office of the prayer, where the reason for it does not exist, the rule requiring it ought to have no application. *Cessante ratione cessat et ipsa lex.*

This is a case in which the reason of the requirement fails. The parties, Latta and wife, were named in the bill as “ defendants to this bill.” That was an unmistakable designation of those against whom relief was sought ; and process against them was in fact issued, placed in the hands of the proper officer for service and duly returned. We think'this was fully sufficient to make them parties defendant in the cause, notwithstanding the omission of the prayer for process from the bill.

The second objection, that the decree *pro confesso*was taken too soon, though it may at first sight seem more serious, is in reality entitled to no greater consideration. The object of the order of publication was as well to enable the complainant to proceed to a decree, notwithstanding the absence of the defendants, as to afford them an opportunity to come iu and defend the suit. Strictly, the decree should *394not have been taken until after the expiration of December 5th ; and having been taken on that day it could have been vacated on a proper application by the defendants in case they had appeared during the day. No appearance having been put in by them, and no such application having been made, we think the decree may well be considered to have been rendered as though conditioned to go into effect in case no appearance should be entered by the defendants within the time allowed them. It is not pretended that those parties ever contemplated entering their appearance, or that their rights were in any wise affected by the rendition of the decree *pro confesso*on the rule day instead of on the day after. Under the circumstances we could not feel justified in holding that cause to have miscarried, merely by reason of the premature rendition of the decree *pro confesso.*

*We*think that the complainant has a good title to the premises involved in this cause, and he is entitled to a specific performance by the defendant of the contract to purchase.