Meyer v. Meyer

Dunn, C. J., and Cartwright, J.,

dissenting:

The effect of amending the bill after a decree pro confesso is stated to be to render the previous order to take the bill pro confesso inoperative even where the purpose of the amendment is to rectify a clerical error, (1 Daniell’s Ch. PI. & Pr.—6th Am. ed.—*426; Weightman v. Powell, 2 DeG. & S. 570.) We have held that the effect of amending the bill after a decree pro confesso is to set aside the default without any order of the court. (Lyndon v. Lyndon, 69 Ill. 43; Gibson v. Rees, 50 id. 383; South Chicago Brewing Co. v. Taylor, 205 id. 132; Ruppe v. Glos, 251 id. 80.) Here an amendment was made adding to the bill a subject matter not included in the Original bill and asking for relief not within the scope of such original bill, and a decree was rendered not only for the relief prayed for in the original bill, but excluding the defendant from any interest in the property mentioned in the amended bill. It is immaterial whether the amendment was sufficient to entitle the complainant to the relief prayed for. The purpose of its averments, though indefinite, was to secure such relief, and it was actually made the basis for granting such relief. The plaintiff in error was entitled to answer or demur to the whole bill as amended and every part of it, and was in no default which would prevent such answer or demurrer until a decree pro confesso was taken against him on the amended bill. The cause was not ripe for hearing. The practice in courts of chancery gives to defendants a reasonable opportunity to interpose a defense by way of demurrer or answer, and except on a decree pro confesso for want of an answer a final decree can be rendered only upon a final hearing regularly had. (Western Union Telegraph Co. v. Pacific and Atlantic Telegraph Co. 49 Ill. 90.) It was error to proceed to a hearing without an answer or a decree pro confesso.