American Life Insurance & Trust Co. v. Bayard — 3 Barb. Ch. 610

Majority

p. 610

The American Life Insurance and Trust Company vs. Bayard and others. The same vs. Sackett and others.

Headnote

After a defendant has answered the original bill, and the proofs have been taken in the cause, it is irregular and unauthorized for him, either to answer the matter of the original bill anew, or to put in an answer to a supplemental bill, filed for the purpose of bringing additional parties before the court; and to which supplemental bill he is not a party.

And if the complainant, by mistake, files a replication to an answer thus put in, he will be permitted to withdraw the same, and to move to take the answer from the files of the court.

And if permitting the answer put in by the defendant to remain upon the files of the court will embarrass the proceedings and raise questions which will be productive of delay, it will be ordered to be taken off the files.

This was an application on the .part of the complainants to withdraw a replication which had been filed to a paper purporting to be an answer of E. E. Boudinot, executor, See. to a supplemental bill filed against Sackett and others, to which supplemental bill Boudinot was not a party, and to take such answer from the files of the court.

B. Robinson, for the complainants.

W. A. Smkett, for E. E. Boudinot, executor, dec.

It was clearly irregular and unauthorized for Boudinot, who had already answered the original bill, and after the proofs had been taken in the cause, either to attempt to answer the matters of the original bill anew, or to put in an answer to the supplemental bill to which he was not a party. The latter bill was only filed to bring additional parties before the court; and it was not necessary to make him a party thereto. Probably the rights of the parties will be the same, whether this answer is or is not permitted to remain upon the files of the court. But as it may perhaps embarrass the proceedings, and raise questions which will be productive of delay, *o nor

p. 611

mit it to remain upon the files of the court, the complainants ave right in not permitting it to remain there. The affidavit explains that it was owing to a mistake in the practice that a replication was filed, instead of applying to take this answer off of the files in the first instance; and it is not too late to correct the error at this time.

The replication must therefore be withdrawn and the paper filed by Boudinot, purporting to be his answer to the supplemental bill, must also be taken from the files of the court, as irregularly and improperly placed there.