Jones v. Carper

2 Tenn. Ch. R. 626

• Court: Court of Appeals of Tennessee
• Decided: April 15, 1876
• Status: Published

Opinion

The Chancellor :

— Motion to take the answer from the files because not signed by the defendant.

Although the bill, as in this case, waive an answer under oath, the answer should regularly be signed by the defendant, and, if not signed, a motion will lie to take it off the file for the irregularity. Denison v. Bassford, 7 Paige, 370; Kimball v. Ward, Walk. Ch. 439; Cook v. Dews, 2 Tenn. Ch. 496. But the irregularity by reason of the want of signature may be waived by the complainant, and the filing of a replication is evidence of a waiver. Fulton Bank v. Beach, 2 Paige, 307. By statute in this state the filing of a replication is prohibited. Code, § 4322. The complainant is allowed twenty days after notice of the filing of an answer to except ( § 4400), and, if he fail to except within that time, the cause is at issue, as if replication had been filed. Code, §§ 4328, 4401, 4432. Allowing the cause to go to issue as upon replication is equivalent to filing a replication, and equally waives an irregularity. Motion disallowed.