Page:Federal Reporter, 1st Series, Volume 1.djvu/389

 LINDEB V. LEWIS. 8S1 �the cause is, that no formai order appears to have been entered that the bill be taken pro confessa against these defendants. It is the ordinary practice to enter such an order, but I cannot say that the omission to do so affects the regularity of the final decree or makes it any less absolute. �The rules require that, if no answer or plea is put in, the bill shall be taken pro confessa, and the entry of the interloc- utory decree upon notice, and of the final decree, also upon notice, must, I think, be held to be, in effect, equivalent to such an order. I do not perceive that the failure to enter the order, these defendants having full notice of ail the pro- ceedings, and being, of course, chargeable with notice that theyhadnot answered, can possibly have prejudiced them, and the want of such an order is one of those defects of form, or such a want of form, as is referred to in Eev. St. § 954, which the court is required to disregard. SeeBanky. White, 8 Pet. 262. �It is further suggested that as the complainant is an as- signee in bankruptcy he is, more tban plaintiffs ordinarily, under the control of the court, and that he should, therefore, be restrained, in the exercise of the powers of the court in bankruptcy, from taking an unconscionable advantage of these defendants for the benefit of the creditors of the bankrupts. �Whether this court, sitting in bankruptcy, could relieve these judgment debtors against the collection of this judg- ment on the ground that it could, as a court of bankruptcy, take notice of their alleged claims for equitable relief, and if 80, whether it could be done against the objection of any crediter of the bankrupts; in other words, whether it would be within the powers of the court in bankruptcy to relieve them from that absolute estoppel by record to deny the obli- gation to pay this judgment, which the judgment itself creates, is a question which cannot be raised here, because this appli- cation is not made to the court sitting in bankruptcy, but to the court exercising its jurisdiction in equity, and bound by the rules established for such a court, and it is a motion in this very cause in which the decree must be held to import ��� �