Pritchard v. Huntington

16 Wis. 569 | Wis. | 1863

By the Court,

Dixon, C. J.

The defendant was too late with his demand for a copy of the complaint. He was served with a copy of the summons only, and the demand should have been made within twenty days after such service. Morley vs. Guild, 13 Wis., 578. And he may have been irregular in making and serving his answer before the complaint was in fact drawn. Such an answer was held irregular in Phillips vs. Prescott, 9 How. Pr., 430. But whether irregular or not, the question cannot now be raised. The defect, if any, was cured by the neglect of the plaintiff’s attorneys to return the copy which was served upon them. The answer, though drawn at random, meets the case made by the complaint, and shows that the plaintiff has no cause of action against the defendant. Looking to the dates at which the respective mortgages are alleged to have been recorded, it might appear that, that of the plaintiff was first. But the answer avers the recording of the defendant’s to have been prior in point of time; that he received it without notice of the mortgage to the plaintiff, and that the lien of the latter is subsequent and subject to that of the former. Each and every allegation-of the'complaint, inconsistent with the facts stated in the answer, is also denied. The plaintiff should therefore, have proceeded to trial, instead of applying for judgment as for want of an answer. But if we are wrong in the foregoing conclusion, it was still error for the plaintiff to take judgment without first causing the irregular answer to be stricken from the files. Maxwell vs Jarvis, 14 Wis., 506.

Judgment reversed, and cause remanded for further proceedings according to law. ,