Vanderveer's Administrator v. Holcomb
Supreme Court of New Jersey
The complainant filed liis bill for the foreclosure of a mortgage against Holcomb and wife, who wore non-residents. Tho usual order was taken requiring the defendants to plead, answer, or demur oil or before August 26tli, 1869. August 26th, 1869, Holcomb alone filed a demurrer, which was overruled by an order made May 31st, 1870, directing the defendants to answer in forty days, and that on failure to answer, the bill be taken as confessed.
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The complainant filed liis bill for the foreclosure of a mortgage against Holcomb and wife, who wore non-residents. Tho usual order was taken requiring the defendants to plead, answer, or demur oil or before August 26tli, 1869. August 26th, 1869, Holcomb alone filed a demurrer, which was overruled by an order made May 31st, 1870, directing the defendants to answer in forty days, and that on failure to answer, the bill be taken as confessed. Tho time to answer under this order expired July 10th, 1870. On the 23d of June, 1870, Holcomb, without appearing for his wife, or in any way answering…
1Opinion of the Court
The opinion of the court was delivered by
Van S yokel, J.
When a defendant fails to answer the complainant’s bill within the prescribed time, and is compelled to appeal to the favor of the court for leave to file his answer, he will be restricted to an equitable defence, and will not be permitted to set up usury; but where he has a right to answer, no such limitation can be imposed. Collard v. Smith, 2 Beasley 43; Remer v. Shaw, 4 Halst. Ch. 355; Campion v. Kille, 2 McCarter 476.
In Marsh v. Lasher, 2 Beas. 253, in which application was made to open a decree, Chancellor Green says: “ The only…
2Cases cited8 opinions
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- Rowley v. Van BenthuysenCourt for the Trial of Impeachments and Correction of Errors · 1836
- Fulton Bank v. BeachNew York Court of Chancery · 1829
- Mollan v. GriffithNew York Court of Chancery · 1831
- Allen v. MapesNew York Supreme Court · 1839
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3Cited by1 opinion
- Friel v. Diana Realty Co.New Jersey Court of Chancery · 1930