Sixto v. Melendez Maldonado

Rodey, Judge, delivered the following opinion: This cause comes before the court on the motion of the respondent to set aside the decree pro confesso entered on July 2, 1906, herein, and for leave to file an amended answer tendered with the said motion. An examination of the papers in this cause shows that the hill of complaint was filed as long ago as September 24, 1902, and that a good many stipulations, motions, a demurrer and orders for decrees pro confesso, etc., etc., with affidavits and other papers and an answer and exceptions to the same, and motions [354] to set aside decrees pro confesso, and exceptions to the answer,, were filed through the intervening years. Ordinarily the court would not consider with much favor the right of the respondent at this' late day to file this new amended answer, because of the dilatoriness displayed during the entire time since the hill was originally filed.. However, the court has some knowledge of the complicated facts involved in the case, and of the fact that in the case of Sixto v. Sarria, which went to the Supreme Court of the United States (196 U. S. 175, 49 L. ed. 436, 25 Sup. Ct. Rep. 186), certain points of law regarding the rights of the parties may have been fixed, and are perhaps now binding on this court. For that reason, therefore, and because the bill is for partition of certain real estate and for a sale of the same in case it shall be found inconvenient or impossible to partition it; and because of the complications aforesaid and the points of law decided by the Supreme Court of the United States, and because of certain decisions in the local courts, it will be necessary that a full hearing be had in the premises. Therefore the last order taking the bill as confessed will be, and hereby is, set aside, and the amended answer will be, and hereby is, considered as filed as of the date it was tendered, with leave to the complainant within five days hereafter to plead further, if any further pleading shall be necessary to raise an issue in the premises, but with the injunction of the court to both parties that an issue must be immediately raised and the cause tried upon the merits; and it is so ordered.