Prettyman v. Barnard

Mr. Justice Breese delivered the opinion of the court: In this case, when considered in conference, it was found the abstract and brief of plaintiffs in error were so imperfect and unintelligible, that we caused a rule to be entered against them, and a copy served on them by the clerk, that if a proper and intelligible abstract and brief were not furnished within sixty days from the day of entering the rule, the writ of error would be dismissed. There has been no compliance with this rule, and more than sixty days have elapsed since it was entered. We might, therefore, with propriety, dismiss the writ of error. If however, we are to decide the ease on the abstract and brief furnished, we have no hesitation, if we understand them, to affirm the decree, as no error is pointed out sufficient to reverse it. Bailey chose to abide by his exceptions to defendant’s answer to his cross-bill, which being disallowed, and no replication put in, the answer was properly taken for true, and thus the whole case was disposed of. Hone of the exceptions, as we understand them, were well taken, and the court did not err in disallowing them. As to the Kellogg notes, it is shown they were received merely as collateral security, and having never been paid, Bailey could claim no credit on the note and mortgage foi their amount. As to the alleged indebtedness of defendant in error to Walton, that is expressly denied in defendant Barnard’s answer. Both the Kellogg notes and Miller draft, as the receipts show, were, when paid, to be credited on the note of $6,000, but not otherwise. Hot having been paid, they could not be set up as a credit, or as a set-off The motion for a rehearing was addressed to the discretion of the court, and there was no error in refusing it. In the absence of a replication to the answer of Barnard to Bailey’s cross-bill, the answer was properly held to be true, and disposed of the case. The record shows all the parties were served with process, and a proper rule to answer taken against them. If the summons has been lost from the files, the defendant in error should not be prejudiced thereby. The decree recites the fact that process was served,' and there is no evidence it was not served. There is no affidavit of Prettyman in the record that he was not served with process. He appeared in the cause as solicitor for Bailey and for himself, and cannot now say, he was not served with process. It does not appear that Prettyman had any interest in the suit. He appears to be a nominal party merely. With the best understanding we can get of this case from the imperfect manner in' which it is made up and presented, we are satisfied the decree was right, and that it should .be affirmed. jDecree affirmed.