"It is far better to require the complainant to begin anew. To
insert a wholly different case is not properly an amendment, and
should not be considered within the rules on that subject."
So that even if the decree made on the original bill was not
final, the petition filed by Todd was so radical a departure from
the case made and relief prayed by the original bill as to be a new
suit and require service of process on the parties made defendant
thereto. It instituted a new litigation on new and distinct issues
not raised by the original pleadings, and between parties who were
complainants in the original cause.
It is settled that one defendant cannot have a decree against a
codefendant without a cross-bill, with proper prayer, and process
or answer, as in an original suit. Walker v. Byers,
Ark. 246; Gantt, Dig. § 4559; Cullum v. Erwin,
4 Ala. 452;
Cummings' Heirs v. Gill's Heirs,
6 Ala. 562; Shelby v.
2 A. K. Marsh, 514. It follows from the reason
of this rule that if one complainant can under any circumstances
have a decree against another upon a supplemental or amended bill,
it must be upon notice to the latter. After a decree disposing of
the issues and in accordance with the prayer of a bill has been
made, it is not competent for one of the parties, without a service
of new process of appearance, to institute further proceedings on
new issues and for new objects, although connected with the subject
matter of the original litigation, by merely giving the new
proceedings the title of the original cause. If his bill begins a
Page 115 U. S. 149
litigation, the parties against whom he seeks relief are
entitled to notice thereof, and without it they will not be bound,
for the decree of a court rendered against a party who has not been
heard, and has had no chance to be heard, is not a judicial
determination of his rights, and is not entitled to respect in any
other court. Windsor v. McVeigh, 93 U. S.
Upon the original bill, filed in the Chicot Circuit Court by
Todd, it was not possible, therefore, for Todd to get a valid money
decree against Woolfolk and his wife without new and adversary
pleadings and service of process on Woolfolk, and giving him his
day in court. Woolfolk and wife had the right to rely on these
principles of law, and were not bound to take notice of the
petition of Todd, and the proceedings thereunder. Todd and his
counsel appear to have seen the necessity of notice to Woolfolk and
his wife, and made an attempt to give them notice of the petition
filed by Todd, but the record shows that no lawful notice was
served on them. It fails to show notice of any kind. The only
service which the defendants assert to have been made on Woolfolk
and wife was the service on Carlton, as their attorney, who was not
their attorney, but, as he averred, the attorney of Todd, the
petitioner, and the mailing to their address by the sheriff of the
copy of the order. Conceding that these kinds of service, if
executed according to law, were good under the statute of Arkansas,
which they are not, they would have been but substituted service,
and could not support a personal decree against Woolfolk and wife.
Pennoyer v. Neff, 95 U. S. 714
Harkness v. Hyde, 98 U. S. 476
Brooklyn v. Insurance Co., 99 U. S.
; Empire v. Darlington, 101 U. S.
It follows that the record of the proceedings and decree of the
Circuit Court of Chicot County, subsequent to the decree made in
the case of The Creditors of Junius W. Craig v. Emma J. Wright,
Executrix, and others,
on October 28, 1868, was not binding
upon Woolfolk and wife, and could not be received in evidence
against them. As this record contained the only proof offered by
the appellants of any setoff in behalf of anyone whatever against
the mortgage debt due from Todd to
Page 115 U. S. 150
Woolfolk, which the present suit was brought to enforce, it
follows that the defense of setoff pleaded in the answers of the
appellants failed for want of proof, even conceding that they were
entitled to make the setoff.
It remains to consider the plea of the statute of limitations.
The note secured by mortgage, which is the basis of this suit, fell
due October 30, 1870, and the suit was brought October 27, 1879. It
is insisted that the suit to foreclose the mortgage was, under the
law of Arkansas, barred in seven years from the maturity of the
note. In the case of Birnie v. Main,
29 Ark. 591, it was
declared by the Supreme Court of Arkansas that
"to bar a suit for the foreclosure of a mortgage, there must not
only be an adverse possession for such length of time as would bar
an action of ejectment, but there must be an open and notorious
denial of the mortgagee's title; otherwise the possession of the
mortgagor was the possession of the mortgagee."
And in Coldcleugh v. Johnson,
34 Ark. 312, it was said
by the same court that
"the possession of a mortgagor is not to be deemed adverse until
he makes some claim or does some open and notorious act adverse to
the rights of the mortgagee."
See also Hardin v. Boyd, 113 U.
. The only evidence in the record of any such act
by either Smith or Todd was the denial by Todd -- in his answer
filed on April 18, 1876, in a suit brought by Woolfolk against him
in the Circuit Court of Owen County, Kentucky, on one of the
mortgage notes -- that he was indebted to Woolfolk thereon. Up to
that date, at least, the possession of Todd and Smith was the
possession of Woolfolk. This suit to foreclose the mortgage was not