Schmidt v. Braley

Mr. Justice Mulkey delivered the opinion of the Court: It is in effect conceded that the decree, upon the pleadings as they now stand, is correct; but the contention of appellants is, that the court erred in overruling appellants’ motion to set aside the interlocutory decree, and in not permitting them to file a new answer, and that the decree, for these reasons, should be reversed. The application in question was a matter addressed to the sound discretion of the court, and this court will not interpose unless it is able to say there was an abuse of that discretion. That we can not do. The affidavits offered in support of the motion do not present such a state of facts as made it imperative on the court to set aside the proceedings and permit a new answer to be filed, and such being the case, we are not permitted to interfere with its action in the premises. But there is another insuperable objection to the position of appellants. It does not appear from the record what was the character of the new answer which appellants proposed to file, nor, indeed, does it appear that an answer had been prepared at all. How can this court say there was error in refusing to permit an answer to be filed which is not embodied in the record ? Even if we assume one was prepared by counsel, which we have no right to do, still we can not judicially know what it contained, and must presume it was of such a character as warranted the court below in refusing to permit it to be filed. It is a familiar doctrine that appellate tribunals will indulge in all reasonable presumptions in favor of the action of the court below, in order to sustain the judgment or decree reviewed. Applying this doctrine to the case in hand, it is clear we would not be authorized to disturb the decree on the ground suggested, for, assuming an answer to have been prepared, and submitted to the court with the motion, as should have been done, for aught that we know it may have been frivolous, impertinent or scandalous, in either of which events the court should not have allowed it to be filed. The proper practice in such cases is to prepare the answer and submit it to the court with the motion for leave to file it. (2 Daniell’s Chancery Practice', 915.) This was not done,—at least the record does not show it to have been done, which, in legal effect, amounts to the same thing. Upon the record before us we can not do otherwise than to affirm the decree. Decree affirmed.