Toole v. De Kay — 4 Sarat. Ch. Sent. 385

Majority

p. 385

Toole v. De Kay and Wife and others.

November 25 ;

December 3, 1846.

Headnote

It is irregular for a married woman to answer separately from her husband, without the order of the court.

The party who desires the wife to put in a separate answer, must apply for leave 5 the husband, if he seek to be relieved from a joint answer; the wife, if she desire for any cause to answer separately ; and the complainant, if he require a discovery from her, irrespective of her husband.

It is irregular for the wife to put in an answer with her husband, without an order of the court, where the bill has already been taken as confessed by him. And this is so, although the complainant put her under an order to answer or pro confesso.

Where the wife appears, after the bill has been taken as confessed against the hus- • band ; the complainant may proceed with the usual order that the wife answer, or that the bill be taken as confessed by her.

This was a suit to foreclose a mortgage. After the bill had been taken as confessed by De Kay, for want of an appearance, .his wife appeared in the cause, and the complainant entered an order requiring her to answer the bill in forty days, or that it be taken as confessed by her. De Kay and wife thereupon put in a joint answer to the bill. No order of the court respecting her appearance, or authorizing her to answer with or without her husband, was entered by either party. The complainant moved to take the answer from the files for irregularity, and that the bill be taken as confessed by Mrs. De Kay. He read affidavits to the effect that the answer was put in for delay.

J. B. Stevens, for the complainant.

De Kay could not answer at all; and considered as the separate answer of Mrs. De Kay, it is irregular, because there was no order authorizing her to answer separately. ■ (1 Johns, Ch. R.24;

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2 ibid. 139; 1 Paige, 421; 1 Sim. & St. 161 ; 1 Hoff. Ch. Pr. 229; 1 Barb. Ch. Pr. 161.) The answer is false, and put in for delay. (7 Paige, 370.)

M. Hoffman, for Mrs. De Kay.

In 1 J. C. R. there was no evidence of the husband’s assent The party who proceeds against the wife, and insists on her answering, must apply for an order that she answer separately. By his order to answer, he required her to proceed as she did or separately. This may stand as her separate answer, and she was not bound to obtain the order for leave. If irregular, it should be ordered to stand as her answer, on terms.

was wholly irregular for Mr. De Kay to put in an answer under the circumstances. The bill had been taken as confessed against him, and that too for the want of an appearance. His joining for conformity, will not do, when he has no right to answer at all. The answer must then be regarded as the separate answer of Mrs. De Kay.

It is confessedly irregular for a married woman to answer separately from her husband, without the order of the court. But it is said the complainant waived the necessity of such an order, by requiring her to answer, after he had precluded her husband from joining with her; and if otherwise, that it was his duty to have obtained an order for her to answer separately. As to the latter, I will not say that such an order may not be obtained on the complainant’s motion, under special circumstances ; but I am clear that it is not incumbent on him to apply for it, in ordinary cases. Nor was it in this case, where he did not seek to have any discovery, and was content to take the bill as confessed.

The only sensible rule, as it appears to me, is that the party who desires to have the wife put in a separate answer, must make the application for that purpose. Thus, if the husband desire, for any cause, to be relieved from the burthen of a joint answer with his wife, he must move the court. If the wife, having a separate interest, or for any other reason, wish to put. in a separate answer, she should make an application. And if

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the complainant, seeking a discovery from her, is indifferent as to the husband’s answering, but requires an answer from the wife, I think he may, on sufficient cause shown, obtain an order for her to put in a separate answer.

But where the husband suffers the bill to be taken as confessed against him, and the wife subsequently appears, and the complainant desires no more than to take the bill as confessed against her; he may proceed with the common order that she answer within forty days, or that the bill be taken as confessed by her; and if she deem it necessary or proper to answer, she must obtain an order for leave, inasmuch as none but a separate answer can be filed in that stage of the suit. The complainant’s order requiring her to answer, is to be construed as requiring her to do so in a mode that will be regular; which in the case supposed, as much calls for a separate answer under an order to be procured, as in the ordinary instance of a bill for discovery, it would call for an answer on oath.

In truth, it was irregular for the wife to appear in this case, except with her husband ; but that has been waived by accepting her appearance and putting her under an order to answer. I am clear, however, that the waiver extended no farther, and that the answer filed is entirely irregular, and must be removed from the files of the court.

There being nothing to rebut the complainant’s affidavits showing that the answer was probably put in for delay, the bill must be taken as confessed by Mrs. De Kay; and the complainant’s costs of this motion are to be taxed and added to the regular costs in the cause, and collected with them.

Order accordingly.