
    The State v. Evans.
    When a defendant fails to answer within the time prescribed by the Court, a final decree cannot be made; but a decree nisi must be first given, in cases of foreclosure of mortgages.
    ON APPEAL in Chancery from Cape Girardeau Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

In this cause, the State of Missouri (who is appellee) filed her bill in the Circuit Court, against the defendant, (who is appellant,) to have a certain mortgage, executed by Evans to the State, foreclosed, and the premises therein described sold, &c. The bill was filed to the April term of the Circuit Court, 1824, at which term the cause was continued, without answer, or the appearance of the defendant. After-wards, at the August term of said Circuit Court, 1824, the complainant, for want of the appearance and answer of Evans, took a decree for the foreclosure of her mortgage, and the sale of the mortgaged premises, from which the defendant appealed to this Court; whereupon, errors assigned, at the November term of this Court, 1824, the decree aforesaid was reversed, and the cause remanded to said Circuit Court, for a new trial. After the cause was remanded; at the April term of said Circuit Court, 1823, the appellant filed his demurrer to the hill, which was overruled, and thereupon made and filed his answer, to which exceptions were taken, which were sustained, and the defendant ruled to file an additional answer, within twenty days thereafter, and to serve the complainant’s solicitors with a copy thereof, which he failed or refused to do. And afterwards, at the August term of said Circuit Court, 1825, for want of such additional answer, the complainant took her decree absolute, for the foreclosure of the mortgage, and the sale of the premises therein described; to reverse which, the defendant appealed to this Court.

The only error assigned, relied on, is, that the Circuit Court erred, in rendering its decree absolute, in the first instance and such is the- opinion of this Court. The whole tenor of "An Act to regulate proceedings in Chancery,” approved Eebruary the 19th, 1825: (see Revised' Code, p. 636, sections 10, It, 37 and 38,) requires the decree, when made, as upon a bill confessed, whether it be for want of the seasonable and proper appearance of the defendant, with his exceptions, plea, demurrer, or answer to the bill, within the first six days of the term, at which he is required to appear, or within such time as the Court shall direct, to be nisi, which shall be made absolute, at the next term thereafter, unless the defendant shall show good cause why he failed to answer;, within the time prescribed by the law, or the rule of the Court.

The judgment of the Circuit Court is, therefore, reversed, with costs, and the cause remanded to said Court for further proceedings therein, conformably with this opinion.

Wash, J.

X differ with the Court in the construction given to the provisions of "An Act to tegulate proceedings in Chancery,” and think the 17th section the only one applicable to the cause under consideration, by which the failure of the defendant to file his additional answer, subjected him to a decree as upon a bill confessed, and that the proceedings to be had thereon,” as provided for in said section, have no reference to the tenth section, but are to be had according to the general principles of law in Chancery practice 3 according to which, when the allegations of the complainant’s bill are confessed in the answer, or by construction of law, where no sufficient answer or denial can be made, the decree is absolute.  