Pittman v. McClellan , 55 Miss. 299 ( 1877 )

Simrall, C. J.,

delivered the opinion of the court.

Of the class of interlocutory orders from which an appeal may be taken are the refusal of the chancellor to set aside a pro confesso and allow an answer to be filed, oí orders allowing the same to be done, and improper refusals to allow air amendment to be made in the pleadings or proceedings. Code 1871, sec. 1036; Code 1857, p. 548, art. 57.

In Hunt v. Walker, 40 Miss. (1866) it was said by the court, “ When a party seeks to amend his bill, he should regularly accompany his motion * * * with the amendment sought to be filed, so that the court may judge of the propriety of allowing the amendment. And no amendment should be allowed not so presented.”

In Pattison v. Josselyn, 43 Miss. 378, the first branch of the statute was considered, and it was held that the defendant, ought regularly to bring with his motion the answer which he desired to file.

The complainant has got the advantage of his adversary, by superior diligence in the prosecution of his suit — not an. inequitable or nnconscientious advantage, but one that is in entire accordance with the practice of the court. It is reasonable, therefore, that the defendant, who wants relief against apparent negligence, should satisfy the court that he is without blame or laches, and that he is ready then to file a meritorious answer; or, if not then prepared to do so, he should set. forth good reasons for further time.

The practice which prevailed in the English Chancery Court,, and very generally in this country, is to take off the default,, and open the pro confesso on terms; it is a matter of sound discretion to relieve or not, according to circumstances. These terms are that the defendant shall pay costs occasioned by his. default, and incident to the relief, and present his answer, so that the court may judge of it. Hearne v. Ogilvie, 11 Ves. Jr. 76; 1 Dan. Ch. Pr., 4th ed., 523; Wagner v. Ogilvie, 3 Paige, 406; Carter v. Torrence, 11 Ga. 655; Magowan v. James, 12 Smed. & M. 448; Wooster v. Woodhull, 1 Johns. Ch. 539; Parker v. Grant, 1 Johns. Ch. 630.

The object of presenting the answer at the time is twofold : first, not to delay the complainant in his suit; and, second, that the court may see that a meritorious defense is, made. In this state statutes have regulated the subject. The original enactment was: “and such pro confesso, so taken, shall not be set aside except upon good cause shown.” It was continued in that form in the revision of 1857 (Code 1857, p. 546, art. 39), and was reenacted by the present Code, with the words added, “supported by the affidavit of the party, or his solicitor,” which shall be filed in the record and constitute part of the record.

The statute makes it imperative, if “ good cause be shown,” to set aside the pro confesso, and admit the answer. The additional words in the present Code merely prescribe a method of “ showing cause.” Without these words, the practice had been to make the excuse and explanation by affidavit.

To what extent has the statute changed the practice? First, it has converted what was before very much a matter of discretion into a matter of duty; so that, if it be not performed, it may, on appeal, be reviewed; and, second, it has prescribed a mode of supporting the application, to wit, by affidavit. In all other respects the practice remains as before. There is no material difference between the existing law and the former statute. The affidavit under each enactment has been the usual and ordinary method of stating the reasons why a demurrer, plea, or answer was not filed in time. So it is, when statutes have not interfered with the subject.

The case of Magowan v. James, 12 Smed. & M. 448, was decided under a statute the same as'in the revision of 1857. In that case the answer was offered with the motion to set aside the default, and after the court had disposed of the reasons assigned for the delay, it proceeded to scrutinize the bill to ascertain whether it made a meritorious defense. The explanations why it had not been filed earlier were embodied in the bill, instead of a separate affidavit. The case is only valuable in this discussion as illustrating what the practice in this state has been.

Whenever a defendant seeks to be relieved from a pro confesso, or to amend his pleadings, he ought to exhibit with his application the answer or the amendment. If he does not, he ought to explain why he cannot do so, and ask for further time. The statute expressly authorizes the court to grant further time, on cause shown. Code, sec. 1022.

Reading the several provisions of the statute together, they present this state of the law: If the defendant is in default, the complainant may take a pro confesso. 'Nevertheless, the pro confesso shall be vacated for “ good cause;” and the refusal so to do may be reviewed on appeal. But, in the estimation of a court of chancery, “good cause” has not been shown unless the answer is then presented, or unless satisfactory reasons are given why it is not then filed, and further indulgence asked.

If the applicant does not ask further time, the chancellor may well suppose that he is still in default, for not then presenting his answer, and that he is dealing contemptuously with the rules and practice of the court, for the purpose of delaying his adversary.

We will analyze the ' ‘ showing ’ ’ made by the appellant, and see whether it is sufficient.

The summons was returned to the August rules, served. At the September rules the pro confesso was taken. At the Januaiy term next, on the first day of the month, a motion was made to set aside the pro confesso, supported by an affidavit which bears date the 11th of the preceding November. Affiant swore that at the time the order was taken he was prevented by sickness from going to Raymond, employing a solicitor, and filing an answer. He was hindered by the like indisposition in August. He gives no account of his health between the rules-day in August and in September. Nor does he state why he did not prepare an answer between the first Monday in September and the first day of January thereafter — a period of three months. He offers no reason why he did not have an answer when he made his motion, nor did he crave further time to prepare it. He rested his application (as to the reason for not pleading to the bill) purely and solely on the allegation that he was sick on the rules-day in August and ■September, offering no reason why he did not prepare his Tesponse to the bill between those days, and between September 4th and the succeeding January, so as to make it part of his application.

If he had asked for further time, we cannot doubt the court would have allowed it. If his solicitors stated to the court that they did not understand that they must then have the answer ready, but would file it in a short'time, we cannot •doubt that a reasonable time would have been extended. But the party chose in this matter to stand on his showing, and he must abide the consequences.

The defense set forth is that if the appellant had not paid the notes executed by him, they are barred by the statute of limitations; either the notes executed by A. J. Morrison or ■the notes executed by the appellant to A. J. Morrison. The notes executed by appellant to Morrison were never transferred by him, and were fully paid by appellant to Morrison.

The case stated in the bill is that Silas Pittman, the anees "tor of the complainants, on September 3, 1857, sold and conveyed to A. J. Morrison certain real estate for $2,130, taking two notes, and the last one, for $1,000, is still unpaid. About July 21, 1858, Morrison sold the land to Calvin G. Pittman for the same price, $2,130.

At the time of this sale it was agreed that Morrison should •convey the land to C. G. Pittman, in consideration that DeWitt Pittman would surrender the notes that Morrison had given Silas Pittman, and that C. G. Pittman should give to DeWitt Pittman two notes for like sums and maturities.

In the meaiitime Silas Pittman had died, and DeWitt Pittman became his executor, and collected the largest of these motes. In August, 1859, he died, leaving uncollected the note for $1,000. This note passed into the hands of Elizabeth Pittman, while administratrix, etc., of Silas Pittman, who failed to •collect it or the original corresponding note given by Morrison to Silas Pittman. The said Elizabeth • has fully administered on all the property and choses in action of Silas Pittman, de ceased, except this note ; all the debts have been paid, and this-note, or the note of Morrison, is, as against her, barred.

The relief sought is to enforce the vendor’s equity on the land, either for the note given by Morrison to Silas Pittman,, or the note, for the corresponding amount, given by C. G. Pittman to DeWitt Pittman.

The complainants, the heirs and distributees of Silas Pittman, on the averments of the bill, are not barred, though Elizabeth, the administratrix, is.

These are all the allegations necessary to be consulted in determining the merits of the defense.

Two grounds of defense are relied upon: the statute of' limitations, and payment. The affidavit is that the vendor’s lien is barred on the notes executed by A. J. Morrison to Silas-Pittman, and on the notes executed by the appellant to Morrison ; that the notes he made to Morrison were never transferred, and were paid by him to Morrison. The bill is entirely misconceived. It does not allege that the appellant executed notes to Morrison, but that by agreement with DeWitt Pittman, the personal representative of Silas, the vendor (who was dead), and Morrison and the appellant, the latter might buy the land from Morrison, and execute his notes in the place of Morrison’s note, payable to DeWitt Pittman or order, which was accordingly done; and that neither the original note of Morrison nor the substituted note, for $1,000, has been paid. The bill makes no reference to any transaction involving an indebtedness of the appellant to Morrison, and predicates no relief. Therefore, on the face of the bill, the complainants-are not barred of relief. The appellant has disclosed nothing-in his affidavit that would give a different complexion to their claim. We understand the affiant as relying upon the lapse of time from the maturity of the debt, in 1859, as making the bar. But the complainants obviate that by special averments.

On the second ground the appellant makes defense to a debt from himself to Morrison; whereas the complainants are pursuing him as a purchaser from Morrison, with notice of their equity, and as consenting to stand in Morrison’s place; and, also, because DeWitt Pittman, as the personal representative of their ancestor, could not displace the equitable mortgage except by receipt of payment, or as a substituted purchaser in the place of Morrison, and an assumpsit to- the personal representative of the vendor of the purchase-money. Pressly, Supt., v. Ellis, 48 Miss. 580; Elliott v. Connell, 5 Smed. & M. 106; Hoggatt v. Wade, 10 Smed. & M. 143. On the right of the complainants to sue, see Bacon v. Gray, 23 Miss. 144; Fearn v. Shirley, 38 Miss. 598; Adams v. Torry’s Executor, 26 Miss. 502; Pearson v. McMillan, 37 Miss. 600.

It is by no means clear that the appellant disclosed a good •defense.

The order of the chancellor appealed from is affirmed.