Kelly v. Brooks

Chalmers, J., delivered the opinion of the court. The bill was filed against several defendants, all of whom demurred. The demurrer was overruled and the defendants required to answer within sixty days. Only one of them appealed to this court. The decree below was affirmed, and he was given sixty days more within which to answer. Thereafter pro confesso at rules was taken against Brooks, one qf the defendants who had not appealed. This was done more than sixty days after the decree in the lower court, but within less than sixty days after the decree in this court. The day after the decree pro confesso before the clerk was entered, Brooks presented and offered to file his answer, and at the next ensuing term of the court, upon his motion, the pro confesso was set aside and the answer permitted to be filed. From this •action of the court the complainant appeals. [227] We think the setting aside of the pro eonfesso was within the sound discretion of the court, which in this instance was not abused. No step could have been taken in this case by the court below while the former appeal was pending in this court, though only one defendant had appealed, there having been no summons and severance; and even if the pro eonfesso had not been set aside, no final decree could have been made against Brooks, if, upon the answer filed and proof taken by his co-defendant, it had been eventually demonstrated that the complainant was entitled to no relief, as has been held in several cases in this court. Minor v. Stewart, 2 How. 912; Hargrove v. Martin, 6 S. & M. 61. Under these circumstances, it was not erroneous to set aside the pro eonfesso and permit the party to answer. Affirmed, and cause remanded. George, C. J., having been of counsel, takes no part in this decision.