Pond v. Lockwood

11 Ala. 567

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

ORMOND, J.

In our judgment the chancellor erred, in refusing to permit the answer in this cause to be filed. The reason assigned by the chancellor is, that he'had refused at a previous day of the term to set aside the decree pro confesso, and permit an answer to be filed, and he seems to have considered, that this precluded the defendants from afterwards filing an answer. The statute is peremptory, and declares, that “ in all cases before the hearing of the cause, the defendant shall have leave to set aside the order pro confesso, by filing a full and complete answer.” The fact, then, that the respondents had previously been refused permission to file an insufficient answer, was no reason for refusing afterwards to permit a full and complete answer to be filed, before the hearing of the cause. This right is explicitly, and in terms secured to the defendants, and the chancellor has no discretion to refuse the permission. What effect the filing of an answer would have, to delay a cause, when it was postponed until the cause was ready for a hearing, we need not now consider — the right to file the answer at any time before the hearing, is clear.

For this error the decree must be reversed, and the cause remanded for further proceedings.