Opinion
05-07-1886
RUDDEROW v. RUDDEROW and others.
J. W. Wartman, for the motion. D. J. Pancoast, contra.
On motion to set aside confirmation of sale.
J. W. Wartman, for the motion.
D. J. Pancoast, contra.
BIRD, V. C. I cannot entertain this motion, on this petition, because, after every opportunity to be heard, the case was decided against the petitioner; there being nothing new presented to prompt the court to action except the question of fraud upon the part of the counsel of the petitioner. Indeed, the order to show cause was only allowed upon the ground that a grave charge was made against an honorable member of the bar, which, by intimation, might possibly extend to the purchaser. The court could not hesitate to inquire into the merits of such charges. But I refused to proceed upon any other ground, and told counsel who presented the petition that I had given all parties the fullest chance, and must regard the question as settled so far as this court was concerned. Such opportunity to be heard is shown by the facts as they appear by the papers now constituting the records of the court in this cause. The order confirming the sale of the other portion of the premises was made in June, and I refused to advise an order confirming the sale of this portion because it was intimated that there was some doubt whether or not the notices of sale had been posted long enough. I ordered the case to stand over. July 6th I was again asked to advise a confirmation of the report of sale; but, not feeling satisfied that the doubt had been removed, I advised an order to show cause why the sale should not be confirmed. The question came on to be heard under this order, July 21st. July 21st every person had the fullest opportunity to be heard. Counsel appeared, and evidence was offered. After this long delay, and the production of all the proofs that seemed possible, and after the argument of counsel, I thought the notices had been posted according to law, and advised a confirmation of the sale. On the evening of the same day that I so advised, but several hours afterwards, I received, through the mail, a letter from Mr. John W. Wartman, saying that he wanted to be heard in opposition to the confirmation of sale. The order having bee" advised, I could do nothing until the other side had notice. On Satur day of the same week Mr. Wartman presented the petition now under consideration, and wanted the case heard anew on that petition,—in effect, a rehearing of the case. It appeared at that time that Mr. Wartman was fully apprised of the former hearing of July 21st, and that hehad ample time to be present and make his case, but did not appear because some other ordinary professional business detained him. It was ordinary, but the precise nature of which was not disclosed. It was most evident that, if the progress of a cause could be impeded by such excuses, the determination of every cause would depend entirely upon the will of the adversary. When this fact appeared, I promptly refused to entertain any motion on the subject of rehearing except as it might hinge upon the important matter of corruption stated in the affidavits.
This charge of corruption and infamy was not presented as any special ground for opening the case; but, being disclosed to the court, it was at once decided to hear the case on that charge, and on that alone, with the determination to wipe out the infamy imputed, or to compel the surrender of the prize. The most solemn obligation to the state seemed to demand this of the court. Although I allowed the petition to be filed, and also the affidavits disclosing other matter, I distinctly stated that, so far as I was concerned, the inquiry should be limited to one point. And when the case came on to be heard, an effort was made to introduce testimony upon the point formerly agitated respecting the notices, which I rejected upon the ground that that branch of the case had been acted upon by this court, saying that I would not open the case, and that, if I was in error, redress could be obtained by appeal. I also said that I would allow the largest latitude in the examination in order to detect the corruption, if it existed, which plainly might lead to statements of what was said and done respecting the notices. And now I have heard the evidence from the mouths of the witnesses. As I was bound by a sense of duty to order the inquiry, I am glad, for the sake of the bar and bench, that I did. Honorable men, heretofore enjoying an unblemished reputation, are still as deserving of confidence as before. Suffice it to say that there is not one particle of evidence to sustain the gross imputation. I will advise an order dismissing the order tp show cause, with costs.
It is proper to say that the counsel who presented the petition did not ask for anything in the first instance on account of the said charge against other counsel, and only did, before me, afterwards, because he thought that enough testimony had been deduced to establish the insufficiency of the notice; but virtually admitting that the main matter of inquiry was unsupported. As above stated, I only admitted testimony on the question of corruption, and considered nothing else. The sufficiency of the notice had been previously considered.