Hamilton v. Dunn

Breese, J. The rule upon the plaintiff to show cause why he should not give security for costs, was properly discharged by the court on the counter affidavit of the plaintiff; that should have as much weight with the court, as the defendant’s affidavit. Such motions, in such cases, are not regarded in a very favorable light by courts, the object being most generally procrastination and delay. Slight evidence has been usually held sufficient to discharge such rule. It appears from the record, that the motion for the rule and the filing the affidavit of the defendant was on the 8th day of February, and that it lay over until the 26th February, the day next following that on which the case was set for trial, it not having been called up by either party. On the 26th, the rule being discharged, the plaintiff’s counsel thereupon entered his motion for a decree pro confesso, for want of an answer by defendant. The defendant resisted this motion, and thereupon presented his answer and made a cross-motion for leave to file it instanter, which the court denied, and granted a decree pro confesso, impanneled a jury and had the damages assessed. A motion was made to set aside the assessment and the decree pro confesso, and for leave to file his answer, which the court denied, and also denied a separate motion entered subsequently, to set aside the assessment, and entered a final decree, all which is assigned as error. Suits to enforce a mechanics’ lien, although by statute, placed on the common law dockét, are yet proceedings in chancery, and governed by the rules of that court where they apply, and where the act giving the lien has not prescribed different rules. (Scates’ Comp. 156, 159, sections 6, 23.) By the 7th section of this act, (ib. 157), the answer to the bill or petition must be under oath, and by section 8, where process has been served ten days before the return day thereof, the defendant is required to file his answer, on or before the day on which the cause shall be set for trial on the docket, and the issues then made up under the direction of the court. The record shows, no answer was filed on or before the day set for the trial of the cause, the defendant resting upon, his motion for a rule to show cause why security for costs should not be given. This was a motion the defendant had a right to make, and he also, if he did not intend delay, had a right, and it was his duty to call it up before the day fixed by law for filing his answer. It was no part of the complainant’s duty to call it up.. He had the statute for his guide, and knew his rights under it, and if the defendant chose to sleep upon that motion until the day for answering had expired, it was his own folly. By so doing, he put himself wholly within the power of the court, and out of the statute. After that day, it was a matter of discretion with the court, whether the answer should be received or not. The complainant, when he moved for his decree, was entitled to it under the statute, and we cannot say that the court, in refusing the answer, has abused the discretion vested in it. We think it would have been no abuse of its power, to have permitted the answer to be filed, and that a practice less sharp than the one which was indulged in, might be entirely promotive of all the ends of justice. . But no rule of law or of practice has been violated that we can discover, and accordingly affirm the decree. Decree affirmed. ■