Pilant v. S. Hirsch & Co.
| Decision Date | 15 January 1907 |
| Citation | 88 P. 1129,14 N.M. 11,1907 -NMSC- 003 |
| Parties | PILANT v. S. HIRSCH & CO. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
After an answer to a verified complaint on a promissory note has been stricken out as "sham and unverified," and the defendant has elected not to amend, but to stand on his answer, it is not error to adjudge him in default, and to render judgment against him without first acting specifically on his motion for security for costs filed at the same time with his answer.
[Ed Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 201.]
Appeal from District Court, Chaves County; before Justice W. H Pope.
Action by S. Hirsch & Co. against W. R. Pilant. Judgment for plaintiff, defendant appeals. Affirmed.
The appellee brought suit against the appellant on three promissory notes on file in the cause, a duly verified complaint. The defendant seasonably moved that the plaintiff be required to give security for costs, and, on the same day filed an answer not signed or verified by him and not denying the execution of the notes. The plaintiff moved to strike out this answer as "sham and not verified," and for judgment. The court granted the motion to strike out, and the defendant, by his attorneys, announcing that he would not amend, but stand upon his answer, the court found him in default, and gave judgment for the plaintiff, from which judgment the defendant appealed, assigning as error the action of the court in adjudging the defendant in default and in rendering the final judgment against him when his motion for a cost bond had not been complied with or disposed of.
Gatewood & Dunn, for appellant.
A. J. Nisbet, for appellee.
In the brief for the appellant it is claimed that the action of the court in adjudging the defendant to be in default and rendering judgment against him was in effect a denial of his motion for security for costs, and in support of the claim are cited 14 Ency. Pl. & Prac. p. 171, and Sterling Bridge Co. v. Pearl, 80 Ill. 251. Assuming that this contention is sound, as on reason and authority alike, it appears to be, it is difficult to perceive what standing ground the appellant has left for himself. But, aside from that, the action of the district court which is here called in question would seem to have been the only proper one. The language of the statute in relation to security for costs (Comp. Laws 1897, § 2892) is...
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