Majority
Headnote
Although the plaintiff’s attorney has no right to return answers because he deems them frivolous, yet where the defendant’s attorney, after answers have been so returned to him, admits, in court, that he considers them to have been duly returned, and to be no longer effectual as answers, the latter will be estopped from claiming, afterwards, that they can be effectual to prevent the taking of the default of the defendants for want of answers.By the Court,
Although the attorney of the plaintiff had, clearly, no right to return the answers because he deemed them frivolous; and although no attorney or counsel has the right to determine the validity or sufficiency of any pleading; yet, inasmuch as on the motion before Judge Babnaed, the objection offered by the counsel of the defendant and accepted by the judge, amounted to an admission that the answers were deemed by him to have been duly returned, and to be no longer effectual as answers, I think the latter is estopped from claiming, now, that they could, after the motion referred to, be effectual to prevent the plaintiff’s attorney from taking the default of the defendants, for want of answers.
The order should be affirmed, with $5 costs, in each case, without prejudice to the defendant’s right to apply to the favor of the court.
Leonard, Clerhe and Sutherland, Justices.]