Bowman v. Marshall

1 Sarat. Ch. Sent. 27

• Court: Saratoga Chancery Court
• Decided: March 16, 1841
• Status: Published

Opinion

In this case the court decided that the 134th Rule as amended in June, 1840, was not intended to give the complainant the #right to apply for a final decree, in a foreclosure case, where a plea or demurrer to the bill had been put in, in good faith. That the rule was only intended to cover that class of cases which were specified in § 2 of the Act of May, 1840, to reduce the expense of foreclosing mortgages in chancery, where the bill had been taken as confessed, or the answer of the defendant so far admitted the allegations in the bill as to entitle the complainant to a decree. That the peculiar language of that part of the rule which relates to this subject was adopted for the purpose of including the case of an infant who had put in a general answer by his guardian ad litem. That where a plea or demurrer has been put in to a foreclosure bill, in good faith, the cause was not in readiness for a final decree upon the disallowance of such plea or demurrer; as the defendant has the right to put in an answer to the bill, upon payment of costs (see Rule 49); and that where (he complainant intends to insist that the plea or demurrer to a bill of foreclosure is frivolous, and to ask for an order to take the bill as confessed, and for a final decree in the cause on that ground, he must apprise the defendant of such intention by a special notice to that effect. That, as a general rule, the court will not decide upon the merits of a plea or demurrer, upon a special motion to overrule the same as frivolous; but that the spirit of the Act of May, 1840, requires that a frivolous plea or demurrer to a bill of foreclosure should be made an exception to the general rule; and that in such cases, where a defense of that kind is interposed which is clearly frivolous, and intended for delay merely, the complainant may move, upon any regular motion day, before *tbe cause can be reached in its regular order on the calendar, to overrule the demurrer or plea as frivolous, and for a final decree upon the bill taken as confessed. Demurrer overruled, and bill taken as confessed for -want of an answer; and the usual decree for sale of the premises.