Coach v. Adsit

• Decision Date: 24 November 1893
• Citation: 56 N.W. 937,97 Mich. 563
• Court: Michigan Supreme Court
• Parties: COACH v. ADSIT, Circuit Judge.

56 N.W. 937

97 Mich. 563

COACH v. ADSIT, Circuit Judge.

Supreme Court of Michigan

November 24, 1893

Mandamus on relation of William Coach to Allen C. Adsit, Kent circuit judge. Writ granted.

Chadbourne & Rees and Fletcher & Wanty, for relator. D. E. Corbitt, for respondent.

HOOKER, C.J.

Defendant having filed an answer, in which he claimed the right to affirmative relief, as though upon cross bill, entered the default of the complainant for his failure to file an answer to the new facts set up in defendant's answer upon which the claim to affirmative relief was asked, a replication in the usual form only having been filed. This default having been set aside upon motion, complainant asks a mandamus requiring the circuit judge to vacate his order, it being contended that the replication is a sufficient denial of the matter set up in the answer. Rule 123 was intended to supplant the practice of filing a formal cross bill by a simpler method. To that end it was provided that a person might have all the benefit of a cross bill upon an answer containing the proper averments and prayer. There is nothing in the rule that deprives the complainant of the right to answer, (Hackley v. Mack, 60 Mich. 591, 27 N.W 871;) and we think it may also be said that there is nothing in the rule to deprive the defendant of the benefit of an answer, the same as though a cross bill had been filed. The general replication, while technically a denial of the truth of the answer, is a formal paper, intended to complete an issue. But it cannot properly take the place of an answer. A cross bill proper may be taken as confessed, in which case the allegations of such bill are taken as true. 2 Barb. Ch Pr. 135. We think the same practice proper in case of an answer claiming the benefits of a cross bill. In such case the replication puts the original case as made by bill and answer at issue, while those averments which are properly in the answer only as the basis of a cross claim, under the rule, must be answered specifically, according to the usual practice. Defendant's default was therefore properly entered, and the order vacating the same, and striking the papers on which said order pro confesso was based from the files, should be vacated. A writ of mandamus requiring this will issue, without costs. It is not intended hereby to foreclose the right of the complainant to apply for, and the court to grant, an order setting aside the...