#### Maxwell vs. Jarvis and another, impleaded, &c.

Where an answer was actually filed before an order taking a bill in equity *pro confesso*was obtained, but after the time limited for answering had expired, it was irregular to take an order for judgment for want of an answer without first having such answer removed from the record.

Where the plaintiff’s attorneys, on the last day of the time limited for answering, stipulated that the defendant’s answer might be filed on being signed by the defendant’s attorney in fact, and this stipulation and the answer were put on file the next day, *it seems*that such a stipulation ought to be construed as giving a reasonable time after it was entered into to comply with its provisions.

Whether the answer was strictly in time or not, the court would undoubtedly have allowed it to remain, without terms, in view of the stipulation.

Where the judgment has been taken irregularly for want of an answer, when an answer was actually on file, the judgment will be reversed though the answer should appear to be insufficient.

APPEAL from the Circuit Court for *Dane*County.

Bill to foreclose a mortgage, filed April 3d, 1856. Judgment *pro confesso*against the mortgagors, October 6th, 1856. *Wm. B. Jarvis, Sen.,*who was made a defendant as the owner of another mortgage on the same premises, having been duly shown to be a non-resident of the state, an order had been procured and duly published requiring him to plead, answer or demur on or before the 27th of October. On the day last mentioned the plaintiff’s attorneys stipulated that the answer of said *William B. Jarvis Sen.,*might be put in without his oath or signature, and that the same might be filed on being signed by his attorney in fact *507This stipulation was placed on file together with the answer of *William B. Jarvis, Sen.,*signed by William Jarvis as his attorney in fact, on the 28th of the same month The nature of this answer is sufficiently stated in the opinion of the court. On the 28th of November, 1857, the court made an order that the bill be taken as confessed against *William B. Jarvis, Sen.,*on the ground that “no plea, answer, demurrer or other paper had been filed or interposed ” by said defendant within the time limited for that purpose. On the 30th of the same month, the attorneys of the defendant *William B. Jarvis, Sen.,*served notices of their appearance as such, and also that they excepted to the aforesaid order taking the bill as confessed against said defendant. After the usual order of reference to compute the amount due, and notice of application for judgment, the plaintiff, on the 26th of December, 1857,. obtained a decree of foreclosure founded upon the order taking the bill *pro confesso.*Subsequently *William B. Jarvis*and *George Jarvis,*executors of the last will of said defendant *William B. Jarvis, Sen.,*were substituted as defendants, and took this appeal.

*Wakeley & Vilas,*for appellants:

Under the chancery rule which was in force when the answer in this case was filed, an answer could be filed at any time before an order taking the bill *pro confesso*was obtained by the plaintiff. Buie 27, Old Chancery Bules ; *Hawkins vs. Crook,*2 P. Wms., 555. 2. Where an answer was onee filed, a bill could never be taken as confessed until the answer was taken off the files by order of the court. *Sedgier vs. Tyte,*11 Yesey, 202 ; 1 DanieU’s Ch. Pr., 576.

*Julius T. Clark,*for respondent:

1. The defendant could answer after the time limited, only by leave of court. 1 Barb. Ch. Pr., 146. 2. There is no evidence that *Wm. B. Jarvis*was attorney in fact of *Wm. B. Jarvis, Sen.*That evidence should have accompanied the answer to entitle it to be filed. 3. The answer contains no defense.

December 11.

*By the Court,*

Paute J.

We think the authorities cited by the appellant’s counsel show that when an answer is ac-*508P"11* before an order taking tbe billyiro *confesso,*and for judgment for want of an answer, is made, it is irregular to -fcalsie sucb latter order without first removing tbe answer from tbe record, although the time for answering had expired when it was filed. The plaintiff’s judgment was therefore irregular, without reference to the stipulation of the parties under which the answer was put in. But on referring to that stipulation, we think it would not be going too far to say that there was a substantial compliance with it in filing the answer. The stipulation was dated on the last day for answering. It is true it does not contain any express extension of the time, but consents that the answer be filed on being signed by the attorney in fact. It is questionable whether such a stipulation, on the very last day for answering, ought not to be construed as giving a reasonable time after it was entered into to comply with its provisions; and here the answer was filed on the next day, which certainly was no great *laches.*And whether it was strictly in time or not, the court would undoubtedly have allowed it to remain without terms, in view of the stipulation.

But it is objected by the counsel for the respondent that the judgment should not be reversed, for the reason that the answer does not set up any defense, and shows that *Jarvis*has no interest in the premises. The latter proposition must be conceded, for it avers that the mortgage through which *Jarvis*claims an interest, had been foreclosed, and the premises sold to one "Wright, which would leave *Jarvis*without any interest. His counsel stated on the argument that such is not the real fact, and that *Jarvis*still has the interest represented by that mortgage, and suggested that the defect must have arisen from the confusion growing out of the loss of the original records.

But without reference to this statement, we think where a judgment is taken irregularly, for want of an answer, when an answer is on file, that .the insufficiency of the answer is no reason why it should not be reversed. If the party’s answer was defective, he had a right to have its sufficiency tested on demurrer or otherwise, and to amend if the facts of his case would enable him to do so. This conclusion is *509supported bj tbe rule under tbe present practice, of reversing judgments entered for tbe frivolousneSs of tbe where this court holds it not frivolous, without inquiring into its sufficiency on tbe merits. If tbe objection made here is good, it would be equally good there. And if this court should adjudge tbe answer not to be frivolous, tbe party who bad entered judgment for its frivolousness might still claim that tbe judgment ought not to be reversed, because tbe answer, though not frivolous, was still insufficient on demurrer. Tbe answer to such an objection in each instance is, that if tbe answer is insufficient, that objection should be properly taken in tbe court below, so that if it should be sustained, the party might have an opportunity to perfect his pleading.

The judgment is reversed, with costs, and the cause remanded for further proceedings.