It is not sufficient cause to warrant the setting aside of a pro confesso order, that counsel for the defendant was prevented from sooner preparing an answer from "press of business."73 It is held that for surprise, mistake, accident, or other good cause the court has power, even after the enrollment of the decree, to open a regular decree, obtained by default, to let in a meritorious defense which the defendant has been prevented from using.74 It has been said that if a defendant comes in without unnecessary delay, by motion or petition, after a decree pro confesso regularly taken, he will, upon any reasonable ground for indulgence, be permitted to answer, upon payment of costs.75 Lord Hardwicke said it was a question on which side the greater inconvenience would lie, and he finally opened the case, on payment of costs of the default and of all subsequent proceedings, notwithstanding two years had elapsed after the decree had been made absolute on account of the defendant's not appearing at the hearing.76 In the federal courts a decree pro confesso cannot be vacated after the expiration of the term at which it was entered." One who has been served with a subpoena in a suit, and has consulted counsel, and then paid no further attention, cannot have a decree against him opened on the ground of surprise. It is said that a decree pro confesso will be opened, or a final decree set aside, and defendants let in to answer, on

13 Cook v. Dews, 2 Tenn. Ch. 496; Totten v. Nance, 3 Tenn. Ch. 264. 14 Kemp v. Squire, 1 Ves. Sr. 205; Rogan v. Walker, 1 Wis. 631; Millspaugh v. McBride, 7 Paige (N. Y.) 509, 34 Am. Dec. 360; First Nat. Bank of Washington City v. Eccleston, 48 Md. 145; Mutual Life Ins. Co. of New York v. Sturges, 32 N. J. Eq. 678; Erwin v. Vint, 6 Munf. (Va.) 267. In Michigan it is held that, after a decree upon default after appearance has been enrolled, it is subject to be opened for examination only on bill of review. Maynard v. Pereault, 30 Mich. 160. See McMicken v. Perin, 18 How. (U. S.) 507; Allen v. Wilson, 21 Fed. 881.

75 Emery v. Downing, 13 N. J. Eq. 59; Williams v. Thompson, 2 Brown Ch. 279.

76 Cunyngham v. Cunyngham, Amb. 89.

77 McGregor v. Vermont Loan & Trust Co., 104 Fed. 709; Brooks v. Railroad Co., 102 U. S. 107.

To Miller v. Hild, 11 N. J. Eq. 25.

proof of surprise, where no negligence is attributable to the defendants.7 79

§ 157. Imposing conditions.

The court may impose conditions upon a defendant asking that a decree pro confesso be set aside. It is a general rule that, where a defendant answers by favor of the court, he must be restricted to an equitable answer; and it is the settled practice of the court of chancery not to set aside a regular order taking a bill as confessed, to enable a defendant to set up an unconscientious defense; and where the defense is usury, the court frequently requires the defendant to undertake that he will not avail himself of that defense, except as to the amount of the usurious premium.80 It is held that a motion of a party in contempt to open a default will be denied.81

$ 158. Proceedings to set aside order or decree pro confesso.

An order or decree pro confesso should not be set aside to

79 Van Deventer v. Stiger, 25 N. J. Eq. 224. See Miller v. Hild, 11 N. J. Eq. 25; Babcock v. Perry, 4 Wis. 31.

80 Quincy v. Foot, 1 Barb. Ch. (N. Y.) 496; Vanderveer's Adm'r v. Holcomb, 22 N. J. Eq. 557; National Fire Ins. Co. v. Sackett, 11 Paige (N. Y.) 660. Where a default is set aside, and the defendant is allowed to come in and answer, the court will not debar him from setting up the statute of limitations, unless there are special circumstances, or the delay in appearing has affected the complainant's right to rebut the pleading of the statute. Douglas v. Douglas, 3 Edw. Ch. (N. Y.) 390. Where the neglect to put in an answer in time is sufficiently ac counted for, and the answer, which is sworn to, shows a perfect defense to a part of the relief claimed by the bill, complainant is not entitled to a stay of proceedings upon a judgment, without giving security to pay it, or so much of it as might ultimately be decided to be equitably due. Mumford v. Sprague, 11 Paige (N. Y.) 438. See, also, Gay v. Gay, 10 Paige (N. Y.) 369. Where the defendant has had an opportunity to set up his discharge under the bankrupt act as a technical defense, and has failed to do so, the court will not open a regular default for the purpose of enabling him to set up such discharge. Freeman v. Warren, 3 Barb. Ch. (N. Y.) 635.

81 Ellingwood v. Stevenson, 4 Sandf. Ch. (N. Y.) 366; Johnson v. Pinney, 1 Paige (N. Y.) 646; Robinson v. Owen, 46 N. H. 38. See post, §§ 325, 417, 559.

83

permit a defendant to file an answer which fails to show a meritorious defense.$2 The better rule would seem to be that an application may be either by petition, properly verified, which is the more usual method, or upon motion, sustained by affidavit. After an order that a bill be taken pro confesso, the mere putting in of an answer is not sufficient to set aside the order, 84 A decrce pro confesso will not be set aside on mere affidavits of the defendant that he is advised he has a good defense, without setting out definitely the facts constituting such defense, or submitting a sworn answer.85 Such motion should be accompanied by affidavits setting forth clearly the reasons for setting it aside, and be accompanied with an answer and an offer to file the same.86 The defendant must either show that in good faith he believes that he has a good defense, by producing and moving upon the sworn answer which he intends to put in, or by stating the nature and facts of his defense in his petition, and swearing to the petition, or, if made on motion, in the affidavit accompanying the motion.87 Where a motion is resorted to for setting aside a decree pro confesso, the complainant should be served with notice of the motion, and copies of the affidavits

82 Ozark Land Co. v. Leonard, 24 Fed. 660; Keil v. West, 21 Fla. 508; Terry v. Trustees of Eureka College, 70 II. 236; Totten v. Nance, 3 Tenn. Ch. 264; Emery v. Downing, 13 N. J. Eq. 59; Biloxi City R. Co. v. Maloney (Miss.) 19 So. 832; Parker v. Grant, 1 Johns. Ch. (N. Y.) 630; Kelly v. Roane Iron Co. (Tenn. Ch. App.) 53 S. W. 1102. It is held that under a statute providing that no decree pro confesso shall be set aside except on filing a full and complete answer to the bill, such a decree will not be set aside for the purpose of allowing a plea to be filed. Bank of St. Marys v. St. John, 25 Ala. 566.

83 Emery v. Downing, 13 N. J. Eq. 59; Beekman v. Peck, 3 Johns. Ch. (N. Y.) 415. See French v. Hay, 22 Wall. (U. S.) 238; Fellows v. Hall, 3 McLean, 281, Fed. Cas. No. 4,722.

84 Carter v. Torrance, 11 Ga. 654; Platt v. Griffith, 27 N. J. Eq. 207. 85 Schofield v. Horse Springs Cattle Co., 65 Fed. 433; Winship v. Jewett, 1 Barb. Ch. (N. Y.) 173.

se Dunn v. Keegin, 4 11. 292; Cook v. Dews, 2 Tenn. Ch. 496; Wells v. Cruger, 5 Paige (N. Y.) 164.

87 Hart v. Lindsay, Walk. (Mich.) 72; Hunt v. Wallis, 6 Paige (N. Y.) 371; Goodhue v. Churchman, 1 Barb. Ch. (N. Y.) 596.

v. Waters, 7 Cold. (Tenn.) 323.

See Wilson

on which it is intended to be made.88 A pro confesso decree against several defendants cannot be set aside as to all, on an answer sworn to by only one of them.89 The affidavit should be made by the defendant himself, or, if made by counsel, sufficient reason should be shown for its not being made by the party.9 A defendant cannot object to the action of the court in setting aside a pro confesso order against a co-defendant.91 Where the court reverses a decree against infant and adult defendants on their joint appeal, for the reason that the record fails to show proper service on the infants, if the decree as to the adults be based upon pro confessos, it is discretionary with the court to set aside such decree as against such adults.92

90

$ 159. Filing counter affidavits.

It is held in some jurisdictions that, on a motion to vacate a decree, counter affidavits are properly receivable, to counteract the affidavit of the defendant offered in support of the motion.98

88 Beekman v. Peck, 3 Johns. Ch. (N. Y.) 415. In Tennessee it is held that, as the petition is for leave to answer, it need not be accompanied by the answer. Brown v. Brown, 86 Tenn. 277, 6 S. W. 869.

89 Cook v. Dews, 2 Tenn. Ch. 496.

90 Bank of Michigan v. Williams, Har. (Mich.) 219; Totten v. Nance, 3 Tenn. Ch. 264.

91 Exchange & Deposit Bank v. Bradley, 15 Lea (Tenn.) 279.

92 Moody v. McDuff, 58 Miss. 751; Ingersoll v. Ingersoll, 42 Miss. 155. See, also, Mansfield v. Hoagland, 46 Ill. 359.

93 Bowman v. Bowman, 64 Ill. 75; Truett v. Wainwright, 9 Ill. 418; Reed v. Curry, 35 Ill. 536; Wilson v. Waters, 7 Cold. (Tenn.) 323. See, also, Cain v. Jennings, 3 Tenn. Ch. 135; Hefling v. Van Zandt, 162 Ill. 162, 44 N. E. 424. The practice of filing counter affidavits seems to have been recognized in New York, where it is held that it is not sufficient, in an opposing affidavit, where the adverse party has no opportunity to answer the same, to state the matter upon the belief of the deponent only. Quincy v. Foot, 1 Barb. Ch. (N. Y.) 496. In Thelin v. Thelin, 8 Ill. App. 421, it is held that, on a motion to set aside a default and decree, counter affidavits are improperly admitted, and the practice of receiving counter affidavits is characterized as a vicious one. Mendell v. Kimball, 85 Ill. 582. See, also, Scrafield v. Sheeler, 18 Ill. App. 507; Kalkaska Mfg. Co. v. Thomas, 17 Ill. App. 235, citing Hanford v. McNair, 2 Wend. (N. Y.) 286; Philips v. Blagge, 3 Johns. (N. Y.) 141.

§ 160. Setting aside orders and decrees pro confesso discretionary.

The interference of a court to relieve a party from the consequences of his default must depend upon sound discretion, arising out of the circumstances of the case. There is no general and positive rule on the subject, and Lord Thurlow observed, in one case,94 that if the defendant comes in after a bill has been taken pro confesso upon any reasonable ground of diligence, and pays costs, the court will attend to his application, if the delay has not been extravagantly long. Lord Hardwicke said it was a question on which side the greater inconvenience would lie; and he finally opened a cause two years after a default, on payment of the costs of the default and of all subsequent proceedings.95 Where there had been gross negligence on the part of the defendant, and the principal and most material witness of the complainant had died since the bill was filed, the court refused to relieve the defendant, as opening the decree would be, perhaps, irremediable injury to the complainant.9°

$161. Effect of vacating decree pro confesso.

The granting leave to answer after a decree pro confesso, and a reference to a master, and a report of the evidence, does not affect the reference or the evidence taken under it.97 When a

In Gibson, Suit in Ch. § 235, p. 209, note, it is said that such counter affidavits should not be allowed. "As to the propriety of receiving cross affidavits upon motions of this character, we choose to say nothing more than that it is a practice of doubtful and dangerous tendency, and to be more encouraged in the breach than the observance." Bu chanan v. McManus, 3 Humph. (Tenn.) 450.

94 Williams v. Thompson, 2 Brown Ch. 279.

95 Wooster v. Woodhull, 1 Johns. Ch. (N. Y.) 539; Cunyngham v. • Cunyngham, Amb. 89; Robson v. Cranmell, 1 Dickens, 61; Pittman v. McClellan, 55 Miss. 304; Yates v. Woodruff, 4 Edw. Ch. (N. Y.) 700; Boyd v. Vanderkemp, 1 Barb. Ch. (N. Y.) 273; Lansing v. McPherson, 3 Johns. Ch. (N. Y.) 424.

96 Wooster v. Woodhull, 1 Johns. Ch. (N. Y.) 539. See, also, Williamson v. Sykes, 13 N. J. Eq. 182; Buchanan v. McManus, 3 Humph. (Tenn.) 449; Carter v. Torrance, 11 Ga. 654; Brewer v. Dodge, 28 Mich. 359; Parker v. Grant, 1 Johns. Ch. (N. Y.) 630.

7 Grob v. Cushman, 45 Ill. 119.