106 Tenn. 361 | Tenn. | 1901
The original hill .in this cause was filed to enforce a vendor’s lien upon' land for impaid purchase money. There was an answer to the hill, in which the defendant set up that a fraud had been perpetrated upon her, in that while one tract of land was pointed out to her as the land sold, in fact another and very inferior tract was conveyed, and this fact was not discovered until after a cash payment had been made, which was fully as much ás the tract conveyed -was worth. The answer, after setting out the fraud in detail, prayed, in substance, that she be held not liable for the notes, and that she have an account and recover what she was injured by the fraud.
She asked that the answer be taken as a cross bill; that process issue,. . and complainant be required to answer it, but not under oath, and that she have judgment for whatever might be shown to be justly due her on the basis of the answer and cross bill.
No bond for costs was executed; no' process issued under the prayer of the cross bill, and it was not answered. Proof was taken however, mostly on the part of complainant, the defendant
The general rule is,- however, subject to many exceptions. A dismissal cannot be had after- a
We are of opinion, from these authorities, that if this were a cross bill proper, or an answer as cross bill which had itself been answered, the decree of the Oourt below refusing to alloAV the dismissal would be based upon authority as well as reason.
But the question is made that this answer should not be given the effect of a cross bill, or an • answer as a cross bill.
In Harrell v. Harrell, 4 . Cold., 377, it was held broadly that the Oourt could take .no notice of a paper .filed as a cross bill if no bond was filed.
In Curd v. Davis, 1 Heis., 574, it was said that an answer prayed to be taken as a cross
The majority of the Court is of opinion that this could not be considered a waiver of irregularities, . so that the defendant’s answer could be
I do not concur in this view, but think that when the complainant took proof upon the matters set up in the cross bill, without objecting to it, he waived the irregularities, and the case must be treated as if the answer to the cross bill had been filed and the matters set up in it had been put in issue. Tn that event it is true the complainant might still dismiss his original bill, but the defendant, under his answer as a cross bill, had the right, nevertheless, to proceed to obtain such affirmative relief as he was entitled to under its allegations and the proof.