Mason v. Foster , 26 Ky. 283 ( 1830 )

Chief Justice Robertson

delivered the'opinion of: the Courlv

This is a bill filed by Foster, for a-decree against Mason and Stockton, for the. amount of a promissory note which he had held on them for $75, and which he had lost.

At the term next succeeding that to which the sub-pana was returned executed, a demurrer to the bill was overruled by the. court; whereupon, the defendants below, by their counsel, asked time to draw then-answer; but the court refused to grant the indulgence, and rendered. a decree against them on the bill, as taken for confessed.-

Bill, seeking decree fpr amount of lost note, must allege, that it has not been paid. After demurrer overruled, def’t. should be allowed reasonable time to draw hia answer. Triplett^ for plaintiffs; Hanson, for defendants,

This decree must be reversed.

The bill does not contain sufficient matter to justify the decree. Admitting all its allegations to be true, as was done on the demurrer,it does not resultas the inference of reason or the deduction of law, that the note remained due and unpaid. The bill does not, allege that Mason and Stockton did not pay off the note when it became due, either to the assignor or to the assignee, nor that they had not paid it since. It might, therefore, be true that.they executed such a note; that it was assigned to Foster, and that he bad lost it; and still it may not be true that Foster had a a;igbt to a decree for its amount; because he has not intimated that it was unpaid, when he filed his bill. A declaration containing no more matter than this bill, would be bad on demurrer. A bill for enforcing a lost bond, should bo at least as certain and as specific as a declaration, before a decree should be rendered upon it, without answer.

As the defendants below filed their demurrer in good faith, they were entitled to time enough to enable them to prepare an answer. They might well complain that they were surprised, when their demurrer was overruled. They were not, therefore, bound to have their answer ready tb be filed, at the instant when the demurrer was overruled.

But they were not entitled to a continuance of the cause, unless they had made out some other ground for it than they did. And if (hey were not at court, it was not the duty of the chancellor, to postpone the case until they might choose to come in and file an, answer, unless some good reason for their absence had been shown. But a reasonable time to draw an answer, should have been allowed. This was ah' that was asked.

If this indulgence had been granted, and the answer had not been filed, in a reasonable time, during the term, it would have been proper to take the bill for confessed, so far as it contained equity.

Decree reversed, and the cause remanded, for pro ceedings consistent herewith.