James P. Burlingame & Co. v. Emerson

5 R.I. 62

• Court: Supreme Court of Rhode Island
• Decided: September 6, 1857
• Status: Published

Opinion

Ames, C. J.

The motion to strike out must prevail; the purpose of the statute in authorizing a claimant of this sort to proceed by petition in equity, being, to give him a summary remedy, without the incumbrance and delay of plea, answer, and replication. As the citation to the respondent, directed by the 10th section of ch. 150, Revised Statutes, requires him to appear “at the next term” after the filing of the petition, to show cause, if any he have, why the lien should not be allowed and enforced, without prescribing what shall be the appearance day of the term, and the 16th section directs the court, by themselves or a master, to inquire into the nature and amount of the claim if it shall appear to the court, by confession or on trial, that the petitioner or any other person, party to the proceeding, has a lien to be enforced, it may be proper for the court, by rule, to prescribe the day and mode of appearing, and what default of appearance shall amount to a confession. In the mean time, the practice will prevail, as hitherto, that an appearance may be entered at any time during the term, until, and at the time that the petition is called in order; and non-appearance at that time, when called upon to appear, be regarded as sufficient confession of lien by the owner of the land, &c., to enable the further inquiry.