Mitchell v. Tishomingo Savings Institution

53 Miss. 613

Opinion

Chalmers, J.,

delivered the opinion of the court.

A motion to dissolve an injunction was, by written consent of the parties, heard by the Chancellor in vacation, and sustained. The written agreement recites that it shall be heard “ upon bill, answer and proofs.” The answer was not sworn to, and it is now urged that the absence of verification rendered it a nullity, and that there was therefore no issue joined upon which the Chancellor could pass judgment.

An answer in chancery must be verified by affidavit, and, if this be omitted, it may be treated as a nullity, and stricken from the files on motion; but if no exception be taken by the complainant and he proceeds with the cause, he cannot avail himself of the objection in an appellate court. Nesbitt v. Dallam, 7 Gill & Johns. 494; Fulton Bank v. Beach, 2 Paige, 307.

It is urged that the defence set up in the answer was by way of confession and avoidance, and therefore it devolved upon the defendant to establish it. By the agreement the motion was submitted on the proofs, as well as upon the bill and answer, and, looking to the evidence, we cannot say that the finding on the facts was erroneous.

Decree dissolving injunction affirmed.