Hill v. Meyer

Bliss, Judge, delivered the opinion of the court. The plaintiffs filed their petition to enforce a mechanic’s lien for lumber furnished to build a house upon the separate property of Catharine, the wife of Charles Meyer. They declare upon the account for the lumber, filing an itemized copy with the petition, but state that she closed the account by a note for the amount, i; herewith filed,” given by her husband as agent. The note was not filed, and defendant’s attorney filed a motion for an order to file the note, but did not answer; and the case being continued [586] some six months, a default was taken, tke plaintiffs at the same time filing the note. The court overruled a motion to set aside the default, and defendant appeals. The motion was a frivolous one, and was evidently intended for delay. A motion going to the merits of the petition should dispense with the necessity of answering until it is disposed of. But no fault was found with the petition; the note was not the foundation of the action, and need not have been named in it. Before the defendant could require its production he should have made an issue, and then, if an inspection of the note appeared to he necessary, he might present a petition under sections 36 and 37, or under section 40, ch. 169, General Statutes (Wagn. Stat. 1044-5), or he might have given notice to produce it at the trial, aud, if not produced, might prove its contents. If a defendant can not intelligibly answer without an inspection of a paper in plaintiff’s possession, he ought not to he permitted to excuse himself by simply filing a motion in relation to such paper, hut should obtain an extension of time to answer, and diligently prosecute his petition under section 40, "Wagn. Stat. 1045, for an inspection and copy of the paper. In the present case no defense was set up, the default was properly taken, and the judgment will be affirmed. The other judges concur.