May v. Williams

17 Ala. 23

• Court: Supreme Court of Alabama
• Decided: June 15, 1849
• Status: Published

Opinion

DARGAN, C. J.

This bill was filed by Ferdinand Williams, for the purpose of enforcing a trust created by a deed executed by Harvey Tindall, in favor of John and James May, to secure the payment of several debts, amongst which is the note described™ the bill. The bill was taken as confessed against the Mays. But Tindall answered it, and his answer was filed the 9th of September 1845. At the February Term 1848, on the motion of the complainant, this answer was ■isteicken from the file and a decree fro confesso rendered for ■want of an answer. J A reference was then ordered to ascertain the amount due the complainant and a final decree rendered. No reason is assigned in the order of the chancellor for taking the answer off the file, and we can perceive none why it should ham been done. The answer cannot 'be considered a nullity, (even if it could be held imperfect in any respect,) and the rule is that if any part of'the instrument, purporting to be an answer, is entitled to the character of an answer, that is, if it be an answer to any one material fact alleged in the bill, the .court will not take it off the file, but will leave the plaintiff to except to •it for insufficiency. — 2.Daniel’s Ch. Pr. 920. It is true the answer is not signed by-counsel, but in this State every person has the right to prosecute or defend any suit in. favor of, or against.himself, either-by himself or by counsel; he-is not compelled by law to employ counsel to conduct his suit, but may appear himself before any court and prosecute or defend in propria persona. — See Constitution of Ala. art. 1, sec. 29.

The court erred in taking the' answer off the file, and the decree must be reversed and the cause remanded.