Opinion
03-06-1902
SCHENCK v. SEDAM et al.
Schuyler C. Van Cleef, for complainant. Silas D. Grimstead, for defendant Ayres D. Insley.
Bill by Joannah W. Schenck against Joseph A. Sedam and others. Exceptions by defendants to the master's report Decree withheld for further report.
Schuyler C. Van Cleef, for complainant.
Silas D. Grimstead, for defendant Ayres D. Insley.
GREY, V. C. The defendants Sedam and others have filed to the master's report two exceptions:
First, that the master has reported too large an amount of interest as due on the complainant's bond. The vice chancellor has received a memorandum from the solicitor of the excepting defendants, stating that the master had, without his knowledge, allowed his claim for payment of interest to the complainant, and credited to the defendant. This appears to remove the first ground of exception. Apparently, the counsel for the excepting defendants filed this exception under a misunderstanding. The bond and mortgage and receipts on the bond, all of which were before the master, justify his report that there was due to the complainant the sum of $600, principal, with interest from November 1, 1900, to the date of the master's report An inspection of the bond shows indorsements upon it; the last one being "interest on bond paid to November, 1900." The first exception is overruled.
In regard to the second exception, ascertaining the judgment in favor of Ayres D. Inslee, the master does not certify or send the evidence on which he determined that there were such judgments. The master does report the amount due on the two judgments recovered against Charles W. Sedam, one ofthe exceptant defendants, in favor of the defendant Ayres D. Inslee, with an affidavit of that defendant showing that both were due and owing to him. There is, however, no certificate or return by the master showing any proof before him that the judgments were in fact of record, and were liens in the law. There should be a showing in the report or its accompanying proofs that these judgments were liens. For want of such showing, the matter should be sent back to the master, in order that he may ascertain whether there were such docketed judgments by certified copies from their records. The counsel for the exceptants, under date of March 1, 1902, after this cause had been set down for hearing here on exceptions, has sent to the court a letter asking that decree be withheld until a motion to set aside the order of reference to the master shall be passed upon. Until the master makes his report upon these judgments as above indicated, the second exception cannot be passed upon. The matter may lie over until the same day as that for which the motion to cancel the reference has been noticed. The second exception may then be reconsidered on the additional matters returned by the master.