Deerman v. Smith

Learned, P. J.

The plaintiff is undoubtedly entitled to the judgment asked for, notwithstanding the answer, because nothing therein shows any right to retain the assigned certificate, or to keep the mortgage as an apparent lien. But the defendant makes certain allegations which, though immaterial on the merits, might have some bearing on the question of costs. The defendant attempts to excuse himself for not signing the papers as requested. But he does not say that he gave this excuse to the plaintiff, or requested time to consult his counsel. In all fairness, he should have explained, when the request was made to him, the reason why he declined to sign the papers. If he had needed advice as to their effect, he should have stated this, and asked for time before deciding whether to sign or not. All that he says is that he did not know the full force of the papers. This might be an excuse for waiting till he could consult his lawyer, but it did not excuse a positive refusal. Costs in equity cases are in the discretion of the trial court, and we ought seldom to interfere with the decision. Assuming the truth of the defendant’s answer, we think the court justified in imposing costs. Judgment affirmed, with costs. All concur.