#### THOMAS BOYD, Complainant, Appellee, *vs.*SPENCER STONE, Defendant, Appellant, impleaded with others.

APPEAL Df EQUITY PROM WALWORTH OIROUIT COURT.

It is the duty of a solicitor of record to notify the opposite solicitor - of his disconnection with the case; and until such notice, the solicitor of record will he held responsible in the cause, and service upon him is good.

As to the rights of non-residents in chancery proceedings, and' regularity of practice, see case.

After default had been entered, and a final decree of foreclosure and sale pronounced, and the sale consummated and confirmed, the final decree was opened and vacated, together with all proceedings after the original default, on the petition of a non-resident defendant, and the petitioner had leave to answer and did answer; and after which, the complainant asked, and obtained, leave to amend his bill, and did amend; to which amended bill, the non-resident defendant failed to answer as required; and thereupon, on the cpmplainant’s motion, the order, vacating the original default and subsequent proceedings, was annulled, and the original decree of sale and confirmation was revived and confirmed. Held, that such practice was irregular. The proper course would have been to have entered the default of the defendant, for failure to answer the amended bill, and thereupon to proceed to final decree.

The bill in this case was filed March 11, 1852, in the Wal* worth Circuit Court, to foreclose a mortgage executed to the complainant by Pbilo Clarke, one of the defendants, on certain lands in Walworth county. The appellant Stone was made defendant in the bill, but was not served with process, being a nonresident of the state. On the 19th of April, 1852, an order was made requiring the appellant, and other non-resident defendants, to appear, jfiead, answer or demur within ninety days from the date of the order, not specifying any day certain. On the 29th of July, 1852, the complainant’s solicitors entered an order, signed by themselves only, taking the bill as confessed against the appellant among others. On the 11th of December, 1852, a final decree of foreclosure and sale of the mortgaged premises *241was entered. The premises were sold to the complainant, and the sale was confirmed, May 28, 1853.

In October, 1854, the appellant filed a petition, setting forth, among other things, the facts above stated ; also, that he was a non-resident, and had no notice of these proceedings ; and that he had a good'defence to the bill. On the 5th of October, 1854, the petition came on for hearing, and was argued by counsel; whereupon it was. ordered, that the decree *pro confesso,*and all subsequent proceedings in the suit, be set aside and vacated, and that the appellant plead, &c., by a specified day. He answered accordingly.

On the 5th day of May, 1855, the bill was. dismissed as to the appellant, for want of a replication. January 3, 1856, the order last named was vacated, and the complainant bad leave to amend his bill of complaint within twenty days, and the appellant was to have thirty days after service of a copy of the amended bill, in which to plead, answer or demur thereto.

The amended bill was filed January 25, 1856.

February 29, 1856, a notice was filed to the effect that' the authority and connection of the appellant’s solicitor had ceased on the 15 th January, 1856.

April 3, 1856, the affidavit of H. S. Winsor, Esq., was filed, stating that he was one of the solicitors of the complainant, and that on the day of filing the amended bill he mailed a copy thereof to Winfield Smith, Esq., of the city of Milwaukee, *“*who is the solicitor of record of the said Spencer A. Stone,” and paid the postage; and on the same day, viz: April 8, 1856, an order *pro confesso*was entered as to the appellant Stone.

On the 20th May, 1856, H. S. Winsor, lEsq., the complainant’s solicitor, filed his affidavit, recapitulating some of the prior proceedings in the cause; that the amended bill was duly served upon the solicitor of record in the cause; that the order *pro. con-fesso*was entered, and that the case then stood in court upon the the bill of complaint unanswered, and taken as confessed by the defendant. Whereupon, on the same day, a final order and decree were made, “that the default and orders *pro confesso*against the said defendant, heretofore entered in this cause, be confirmed, *242and that tbe order of tbe 5tb of October, 1854, setting aside and vacating tbe former order and decree, and all subsequent proceedings, be and tbe same are hereby vacated and made void, and that tbe final decree, sale, report and order of confirmation of sale, heretofore made in tbis cause on tbe part of tbe said complainant, be confirmed and beld for good.” •

From wbicb order and decree tbe defendant Stone appealed to tbis court.

■ *Smith &*Salomon, for tbe appellant.

Tbe amended bill was never served on tbe appellant, and bence tbe order of April 3d was irregular, and did not warrant tbe court in making a final decree cutting off tbe appellant’s rights. By tbe order of 29th May, tbe suit bad been dismissed as to tbe appellant, and bis solicitor’s authority in it bad ceased in consequence. If there was any doubt of this, tbe notice of tbe 29th February removed it. Tbe record of tbe case shows that at tbe date of tbe order of April 3d tbe appellant bad not bad notice of tbe amended bill, or an opportunity to answer it.

-Had tbe order of tbe 3d of April been regular, tbe appellant should have bad notice of tbe unusual order of tbe 20th of May, notwithstanding the bill bad been taken as confessed against him. 1 *Barb. Oh. Pr.*372, 569; 4 *of Equity Buies ; King vs. Bryant,*3 *Myl. & Oraig,*191; 1 *Paige,*39 ; 4 *id.*551.

Tbe order appealed from is irregular. 1. Tbe case stood upon tbe bill as amended, and tbe order *pro confesso*as to Stone, none of tbe other defendants having been proceeded against since tbe order *pro confesso*was first vacated. 2. Tbe order of October 5, 1854, was entirely proper. It was justified by tbe statute in favor of non-resident defendants, even if tbe previous proceedings bad all been regular. *B. S, chap.*84, §§ 18, 36. Tbe previous proceedings bad been irregular; tbe rights of non-resident defendants bad been disregarded; tbe complainant bad got tbe appellant’s land without tbe forms of law; tbe order of October 5, 1854, rectified tbis injustice, and is totally unassailable. Tbe order appealed from, so far as tbe appellant is concerned, *243vacates every proper’ order, and revives- every improper order - before annulled..

*II. S.*Winsor, for tbe appellee.

' *By tHe Qowrt,*

Colb J.

Conceding that tbe complainant Boyd, Was entitled to take an order *pro confesso*as to tbe defendant 'Stone, for want of an answer’ to bis amended bill, wbicb 'amended bill bis counsel' insist was duly filed, and properly served'upon Stone’s' solicitor,’yet we do not see bow sucb an •unusual order as tbe one taken in tbis cause, and appealed from, can be sustained.

■■ Without alluding to other steps taken in tbe cause, other than those to wbicb it is necessary to-refer to-make our remarks understood, it will be' observed, that upon’the application of Stone, one of tbe defendants, tbe Circuit Court' by the order of October •5th, 1854, vacated and set aside- a previous order- *pro*confesso, entered in tbe suit, and all subsequent orders and proceedings in-the-cause.' As a--matter of course,--by tbis-order of foreclosure and sale of tbe mortgaged premises, tbe sale made under 'that decree, as well • as tbe order- confirming sucb salé, were wholly vacated and set aside; Such- was tbe object and scope 'of tbe order of 'October oth, 1854," if' its-legitimate effect u-pon -the-proceedings is-given to-it. -Upon tbis order "being granted, Stone filed bis answer to -the bill.’- After tbe answer was filed, tbe complainant-obtained leave'to amend bis bill within twenty days, as be might be advised; ■■ and by the order permitting this amendment, the - defendant- Stone-bad--thirty days after service of a copy of tbe amended bill, in wbicb to plead' or answer thereto. •

Material amendments, or 'what were' 'undoubtedly considered by tbe complainant as material ■ amendments, were filed to tbe original bill, and tbe defendant -'Stone was’required to answer these amendments under oath. A copy of tbe amended bill was served upon the solicitor of Stone. ■ True, a question was made, whether tbis service' was good, but we will only say upon *244tbat point, tbat we consider tbe service • entirely sufficient; tbe mailed copy having been sent off to Mr. Smith, at Milwaukee, before tbe complainant’s solicitors bad been notified by him tbat bis connection with tbe case bad ceased. He was tbe solicitor of record, and tbe only one tbe complainant could serve bis amended bill upon. Stone then neglecting to file bis answer within thirty days, the complainant was, unquestionably, entitled to an order tbat the bill as amended be taken as confessed, as to Stone, and a decree of foreclosure and sale of tbe mortgaged premises. It appears very clear to us tbat such was tbe proper and regular decree to be taken at this stage of the proceedings. But tbe complainant did not see fit to take such a decree, and have tbe mortgaged premises sold, but an order was entered vacating tbe order of tbe 5th of October, and confirming everything set aside and vacated by this last-mentioned order. By this novel practice, tbe complainant abandoned tbe case as it stood upon bis amended bill, and attempted to fall back upon a decree and sale made upon tbe original bill, which had been vacated and set aside. No authority has been cited in support of tbe practice pursued in this case, and we certainly know of none. We consider it irregular and improper. Let tbe complainant take bis decree upon bis amended bill, and proceed to a sale of tbe mortgaged premises. But it is suggested, if be does this, tbat tbe parties will be brought back to tbe same position they occupied before tbe order of October 5th, 1854, was entered; and tbat, therefore, a re-sale is entirely unnecessary. Such may or may not be tbe case. Tbe property may bring more, or it may not bring as much as it did at tbe former sale. We think it altogether probable tbat it will bring more. Such, undoubtedly, was tbe idea of Stone; otherwise be would not have taken steps to have tbe first sale set aside. But however this may be, Stone is entitled to have a re-sale of the premises, and an opportunity of protecting bis interests in the premises, at such re-sale, if be desires to, and has any such interests to protect.

The order of tbe court below is reversed, and tbe cause remanded for further proceedings according to law.