Opinion
10-14-1886
RAELBLE v. GOEBBEL and others. (Two Cases.)
Mr. Stephany, for the motion. Mr. Abbott, contra.
Bill to foreclose. On motion to strike out parts of answer.
Mr. Stephany, for the motion.
Mr. Abbott, contra.
BIRD, V. C. The first and third objections are aimed at the formal beginning and ending of the answer. Such beginning and ending are in violation of the rule of court, and consequently the motion to strike out must prevail.
The second objection is to that part of the answer which sets up a payment of all the principal, interest, and costs to the complainant's counsel since the commencement of the suit. The argument is that such fact can only be set up by cross-bill. No authority has been shown me sustaining this objection. Nor does a careful research bring to light any principle which would justify a cross-bill in such case. A cross-bill is filed when the defendant seeks affirmative relief; but, when he simply defends, he proceeds by answer only. No fact can be more appropriately used by way of defense than payment. Indeed, I cannot imagine any other possible method of presenting the question than by answer, even though, as in this case, the payment is not made until after bill filed. The second objection is not well taken. Prevailing on the other two, the complainant is entitled to costs.