45 Miss. 698 | Miss. | 1871
It is assigned for error that the motion of the complainant to take the bill for confessed ought to have been sustained, instead of denied. And, second, that the bill ought not to have been dismissed for want of prosecution.
Among the admirable rules of practice prescribed in the Code of 1857, pp. 546, 547, § 7, are these : If the defendant shall fail to plead, demur or answer, at the proper season, the bill may be taken as confessed, and the court may proceed to make such decree thereupon as may be equitable. When a plea shall be filed, the complainant may set it down for argument upon its sufficiency in law, or may reply and take issue.
According to chancery practice there are these modes of dealing with a plea: The complainant may set it down for hearing on its sufficiency in law, or he may traverse it, and put in issue the matter of it. In the former case he omits the truth of its allegations, and puts in question their legal sufficiency to bar his relief. In the latter he concedes their sufficiency and refers to evidence to settle the issue of fact. 6 Wheat. 472; 14 Pet. 257. The plea may go to a part or the whole of the bill. Story’s Eq. Plead., § 693. Art. 42, Code 547, accords with the general practice of courts of equity. “The complainant may set down the plea for argument in its sufficiency in law, or may reply and take issue.” But it is said by the appellant that the matter of the plea is insufficient. Pleas in chancery are very much like those in» law, as to their order and classification. They may be in abatement or in bar. The former may go to the jurisdiction
After the motion for pro confesso was overruled, the complainant did not then ask leave to argue the pleas on their sufficiency, or to take issue upon them ; nor did he do so when the defendants moved a dismissal of his bill. If he was under a misconception as to the mode of dealing with the pleas, then was the opportunity to have craved further indulgence. In the attitude of the case, we can examine the pleas for the single purpose of determining whether they were put in good faith, and contain substance fairly admitting of consideration as to sufficiency. If they were so barren of merits as to be characterized as frivolous, then the chancellor might have set them aside as such, and granted the motion for a pro confesso. We think the pleas required either a judgment of the court upon them, or an issue of fact.
Let the decree be affirmed.