OUTLINE OF PROCEEDINGS IN EQUITY. SECTION 7. THE PROCEEDINGS. The order of the proceedings to be considered (other than the pleadings which are taken up in the following chapters) in a suit in equity, is as follows: Process for appearance. Proceedings on default. Reference to master. The hearing. The decree. Correction or reversal of decrees. Enforcements of decrees. SECTION 8. PROCESS FOR APPEARANCE. The regular process for appearance in equity, is the writ of subpoena, directed to the defendant, commanding him, under a penalty, personally to appear in court at a prescribed time, and answer the allegations of the bill. It issues in all original proceedings in equity immediately upon the filing of the bill. Obedience to the subpoena may be enforced by attachment for contempt of court in cases where discovery is necessary from the defendant. SECTION 9. APPEARANCE. As in proceedings in common law cases, appearance may be either voluntary or involuntary; and, also, either general or special. A special appearance is one where the defendant appears for some special object, which does not involve any contest as to the merits of the complainant's case. The most common object in appearing specially is to contest the jurisdiction of the court. SECTION 10. PROCEEDINGS ON DEFAULT. If a defendant fails to appear, or after appearance fails to answer the bill, the bill may be taken pro confesso. In some jurisdictions there must be a rule upon the defendant to answer before a bill can thus be taken pro confesso.1 The allegations of a bill taken pro confesso are to be strictly construed,' and although "It is held that the bill, when taken as confessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty; but in respect to matters not alleged with due certainty, or matters which, from their nature, and the course of the court, require an examination of details, the obligation to furnish proof rests on the complainant. It is purely a matter of discretion with the court whether it will require the complainant to make proof against defendants who fail to answer." A party against whom a bill has been taken for confessed cannot complain and assign for error that the proof does not sustain the allegations of the bill." 5 6 SECTION 11. INTERLOCUTORY PROCEEDINGS. By interlocutory proceedings are meant the various steps between the commencement and termination 1 United States Equity, Rule 18; Nesbit vs. St. Patrick's Church, 2 Breckenridge vs. Water's Heirs, Manchester vs. McKee, 9 Ill., 511; Ferguson vs. Sutphen, 8 Johnson vs. Donnell, 15 Ill., 97. Fletcher on Equity Pleading and of a suit, such as the amending of the pleadings, the appointment of a receiver, etc.,' interlocutory decrees, etc. SECTION 12. REFERENCE TO A MASTER. A master in chancery is a quasi judicial officer whose duty it is to aid the equity judge to make investigations as to the facts in the case, in order to aid the judge in the determination of the case before him, and to perform special ministerial acts, such as selling property. The investigations of the master are pursued by hearings held before him, which hearings are conducted very much as regular court proceedings. The character and duties of this office were thus discussed by the Supreme Court of the United States, in the case of Kimberly vs. Arms. 8 "A master in chancery is an officer appointed by the court to assist it in various proceedings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, and to perform such duties as require computation of interest, the value of annuities, the amount of damages in particular cases, the auditing and ascertaining of liens upon property involved, and similar services. The information which he may communicate by his findings in such cases, upon the evidence presented to him, is merely advisory to the court, which it may accept and act upon or disregard in whole or in part, according to its own judgment as to the weight of the evidence. Basey vs. Gallagher, 87 U. S., 20; Wall., 670, 680 (22; 452; 453); Quinby vs. Conlon, 104 U. S., 420, 424 (26; 800; 801). "In practice it is not usual for the court to reject the report of a master, with his findings upon the dence, Vol. VII, Subject 20, Section 115. For discussion of Receivers, see subject of Equity Jurispru 129 U. S., 512 matter referred to him, unless exceptions are taken to them, and brought to its attention, and upon examination the findings are found unsupported or defective in some essential particular. Medsker vs. Bonebrake, 108 U. S., 66 (27; 654); Tilghman vs. Proctor, 125 U. S., 136, 149 (31; 664; 669); Callaghan vs. Myers, 128 U. S., 617, 666 (ante 547; 562). It is not within the general province of a master to pass upon all the issues in an equity case, nor is it competent for the court to refer the entire decision of a case to him without the consent of the parties. It cannot, of its own motion, or upon the request of one party, abdicate its duty upon any of its officers. But when the parties consent to the reference of a case to a master or other officer to hear and decide all the issues therein, and report his findings, both of fact and of law, and such reference is entered as a rule of the court, the master is clothed with very different powers from those which he exercises upon ordinary references without such consent; and his determinations are not subject to be set aside and disregarded at the mere discretion of the court. A reference, by consent of parties, of an entire case for the determination of all its issues, though not strictly a submission of the controversy to arbitration a proceeding which is governed by special rulesis a submission of the controversy to a tribunal of the parties' own selection, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tribunals established by law. Its findings, like those of an independent tribunal, are to be taken as presumptively correct, subject, indeed, to be reviewed under the reservation contained in the consent and order of the court when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise. "The reference of the whole case to a master, as here, has become in late years a matter of more common occurrence than formerly, though it has always been within the power of a court of chancery, with the consent of parties, to order such a reference. Haggett vs. Welsh, 1 Sim., 134; Dowse vs. Coxe, 3 Bing., 20; Prior vs. Hembrow, 8 Mees & W., 773. The power is incident to all courts of superior jurisdiction. Newcomb vs. Wood, 97 U. S., 581, 583 (24; 1085; 1086). By statute, in nearly every State, provision has been made for such references of controversies at law. And there is nothing in the nature of the proceeding, or in the organization of a court of equity, which should preclude a resort to it in controversies involving equitable considerations.' SECTION 13. TAKING OF EVIDENCE. The method of taking evidence in equity suits differs very greatly from that followed in common law cases. Evidence in equity suits is almost invariably taken outside of court, either in hearings of court, before masters in chancery, or in the form of depositions, and is presented to the court in writing. Witnesses, however, may be heard at the regular hearing of the case. The force of the answer as evidence will be considered in a later chapter. SECTION 14. THE HEARING. In general, the hearing in equity does not take place until not only the pleading but also the taking of the evidence has been completed. At the hearing the case is presented to the court, on its merits, the master's report and the depositions are read, and the case is signed by the counsel on each side. |