Lafrance v. Griffin

Ostrander, J. (after stating the facts). If the court below should have considered only the bill and answer, this court may proceed, on this appeal, to consider what decree is warranted by those pleadings. If the court below properly considered the report of the commissioner, the motion to dismiss the appeal must be granted. It is the general rule that, unless a replication is filed, the complainant, if he brings the cause to a hearing, cannot help out his case by proof. Nothing is taken as. true without proof unless admitted by the answer. Morris v. Morris, 5 Mich. 171; Hardwick v. Bassett, 25 Mich. 149. Whether the answer is or is not sworn to, if answer on oath is waived, the rule is the same. Chancery Rule 10, subd. a; Fields v. Highway Commissioner, 102 Mich. 449 (60 N. W. 1048). Under the present practice in this State, every material allegation in the bill to which the defendant shall not make answer is taken as admitted by defendant. Chancery Rule 10, subd. d. There is no claim that the failure to file replication was an inadvertence. It is said in the brief for appellee that *c the reason why complainant filed no replication is none of defendant’s concern. They are affected only by the fact of whether or not one was filed.” The failure to file one was not waived. We conclude, therefore, that the motion to dismiss the appeal should be denied, with costs, and that the cause must stand for hearing in this court upon the record presented. Examination of the bill and answer discloses that admitted allegations of the bill are that the contract was executed, the purchase price was $1,300, payments $25 down and $25 on the 21st of each month until the whole sum [240] and interest at 5 per cent, had been paid, a total of $795 paid before contract relations were ended by notice, and that contract relations were ended by notice. A computation supplies the fact that, when the notice was given, complainant was in default. Affirmative averments in the answer, to be accepted as true, are that on April 4, 1907, complainant was requested to pay on or before April 11, 1907, and paid no attention to the request. The notice terminating contract relations was given April 80, 1907. Nothing was thereafter paid, although a tender of #25, made in July, 1907, after suit had been begun, was refused. Indeed, on July 8, 1909, one year and eight months after the bill was filed, the court below found that at the time of giving the notice, and ever since, complainant was in default, that defendants were entitled to a decree dismissing the bill, and that such a decree would be made unless complainant, on or before July 26th, paid or caused to be paid the full amount due on the contract (it was all due), and, in addition, the taxable costs of the ejectment suit and of this suit. This finding gave complainant credit for $142.75, which the answer did not admit, but expressly denied, as a payment on the contract. The decision proceeds with the statement that, unless the parties agreed before July 17th upon the sum due, an order of reference would be made. The order of reference was not made until August 4, 1909. It is apparent that the commissioner allowed to complainant payments in excess of those admitted and of the #142.75 allowed by the court. It is patent that no reference was required to enable complainant to compute the amount due in accordance with the finding of the court. Costs the court offered to tax summarily, and the taxable costs were ascertainable. So far as is disclosed, complainant has not, up to this time, produced any money in or out of court to discharge the indebtedness. We find that the complainant was in default when the notice of April 30, 1907, was given; that the notice terminated the contract relations of the parties; that the bill is [241] not filed to set aside the forfeiture or to relieve from the default. Indeed, the practice pursued strongly indicates that the bill was filed for delay merely. Appellants, having asked for no affirmative relief, may take a decree dismissing the bill, with costs of both courts. Montgomery, O. J., and Hooker, Moore, and Stone, JJ., concurred.