Maxwell v. Jarvis

By the Court, Paute J. We think the authorities cited by the appellant’s counsel show that when an answer is ac508 P"11* before an order taking tbe billyiro confesso, and for judgment for want of an answer, is made, it is irregular to -fcalsie sucb latter order without first removing tbe answer from tbe record, although the time for answering had expired when it was filed. The plaintiff’s judgment was therefore irregular, without reference to the stipulation of the parties under which the answer was put in. But on referring to that stipulation, we think it would not be going too far to say that there was a substantial compliance with it in filing the answer. The stipulation was dated on the last day for answering. It is true it does not contain any express extension of the time, but consents that the answer be filed on being signed by the attorney in fact. It is questionable whether such a stipulation, on the very last day for answering, ought not to be construed as giving a reasonable time after it was entered into to comply with its provisions; and here the answer was filed on the next day, which certainly was no great laches. And whether it was strictly in time or not, the court would undoubtedly have allowed it to remain without terms, in view of the stipulation. But it is objected by the counsel for the respondent that the judgment should not be reversed, for the reason that the answer does not set up any defense, and shows that Jarvis has no interest in the premises. The latter proposition must be conceded, for it avers that the mortgage through which Jarvis claims an interest, had been foreclosed, and the premises sold to one "Wright, which would leave Jarvis without any interest. His counsel stated on the argument that such is not the real fact, and that Jarvis still has the interest represented by that mortgage, and suggested that the defect must have arisen from the confusion growing out of the loss of the original records. But without reference to this statement, we think where a judgment is taken irregularly, for want of an answer, when an answer is on file, that .the insufficiency of the answer is no reason why it should not be reversed. If the party’s answer was defective, he had a right to have its sufficiency tested on demurrer or otherwise, and to amend if the facts of his case would enable him to do so. This conclusion is [509] supported bj tbe rule under tbe present practice, of reversing judgments entered for tbe frivolousneSs of tbe where this court holds it not frivolous, without inquiring into its sufficiency on tbe merits. If tbe objection made here is good, it would be equally good there. And if this court should adjudge tbe answer not to be frivolous, tbe party who bad entered judgment for its frivolousness might still claim that tbe judgment ought not to be reversed, because tbe answer, though not frivolous, was still insufficient on demurrer. Tbe answer to such an objection in each instance is, that if tbe answer is insufficient, that objection should be properly taken in tbe court below, so that if it should be sustained, the party might have an opportunity to perfect his pleading. The judgment is reversed, with costs, and the cause remanded for further proceedings.