Cassidy v. Caton

Seevers, J. The pleading filed by defendants was no doubt intended as both an answer and cross-petition, and we shall so treat it. The record .states that the court was proceeding to hear- and determine the cause on petition and answer without any evidence or testimony other than the notes and mortgage, when the defendant filed the following motion: “Now come the defendants, and move the court for an order requiring the plaintiff to confess the defendants’ answer and cross-bill, or to grant the defendants a trial, and permit them to introduce testimony in support of said answer and cross-bill before signing and enrolling a decree, because the defendants are desirous of appealing this case to the Supreme Court, and the parties do-not agree upon the facts, and no trial has been had or evidence been introduced.” Which motion was overruled and- defendant excepted. The record proceeds as follows: “thereafter on the same day the court proceeded to a final hearing and trial of the ease on the said petition and answer alone, and without any evidence or testimony except the notes and mortgage.” The appellant insists: [24] i. T>r.EADTNOK answer: wlien denied. I. That the court erred in overruling his motion. The motion. to each of us is a novelty, and we do not think any such practice obtains in this State. The plaintiff can- , , . , , n, it ó . , not be required to hie a pleading confessing, avoiding or denying the allegations in an answer or cross-petition setting up a counter-claim. If no counter-claim is pleaded, the defendant’s pleading, whatever it may contain, is denied by operation of. law. Code, § 2665. If a counter-claim is pleaded, or any other matter requiring a denial, and no pleading in response thereto is filed, the material allegations of such pleading are deemed true. Code, § 2712. In the pleading filed by the defendant no counter-claim-or other matter requiring a denial was pleaded, but the allegations thereof were to be taken as denied by operation of law. If, however, we are mistaken in this, then such pleading or the material allegations were deemed to be true, and no testimony to that extent was required of the* defendants, therefore no possible prejudice could have resulted from the action of the court. As the allegations , of the answer or cross-petition were denied without any pleading filed by the plaintiff, the defendants when the plaintiff rested should have proceeded to introduce testimony in support of the allegations of their pleading. This, for some reason, they declined to do. Never having offered to introduce any evidence, they cannot complain if the court gave the plaintiff’ a judgment if his evidence was deemed sufficient. 2 mobtg\oe: nSfments: contract. II. The defendants insist that the evidence was not sufficient to support the decree, because the notes on their face show severaf of them were not due. But the rnortgage exP1,essly provided that a failure to pay any note >v]ien it became due or the interest thereon when it became q>ayable should have the effect to make the whole amount due, and that the plaintiff might proceed by foreclosure or any other lawful means to make the amount thus becoming due. Counsel do not claim that parties may not so contract. As to the incumbrance which had been foreclosed, the decree [25] was exceedingly favorable to tbe defendants. As they had paid no part of the purchase money, it is questionable at least whether they were entitled to the relief granted in this respect. Aeeirmed.