Harris & Co. v. Lamar

Fish, J. Even if section 4775 of the Civil Code, providing that the officer called on by rule nisi shall fully respond in writing, under oath, “and if the answer is not denied, the rule shall be discharged, or made, absolute, according as the court may deem the answer sufficient or not,” applies to the answer of a receiver to a rule nisi requiring him to show cause why he should not be attached for disobedience of an order or decree directing him to pay over money to the movants, yet where evidence in the movants’ favor, tending to support the averments in the petition for the rule and to disprove the allegations in the answer, was introduced without objection, it was the duty of the judge to consider such evidence in making up his judgment, although no written traverse of the receiver’s.answer had been filed. 2. In view of the answer filed in the present case, and the evidence submitted at the hearing, it was error to relieve the receiver from paying the sum of money in dispute. Let the judgment of the court below be reversed. All the Justices concurring, except Cobb, J., disqualified.