
    James P. Burlingame & Co. v. Ann F. Emerson.
    A plea and answer filed to a petition in equity to enforce a lien under “ the mechanics lien law,” will, upon motion of the petitioner, he ordered to he stricken out and taken off the file; the purpose of the statute in authorizing the petitioner to proceed in this way, being, to give him a summary remedy, without the incumbrance and delay of plea, answer, &c. 1
    The respondent may enter his appearance to such a petition at any time during the term, until, and at the time, that the petition is called in order; and non-appearance at that time by the respondent, when called upon to appeal*, will be regarded as sufficient confession of the lien by the owner of the land, &c., to enable the farther inquiry.
    Petition in equity to enforce a mechanic’s lien under ch. 159, § 9, of Revised Statutes. To the petition the respondent had filed a plea denying the lien, and an answer under oath denying that she was liable to the petitioner for a portion of his claim. The petitioner now moved to strike out the plea, and to take the answer off the file, as unauthorized in such a proceeding as this.
    The motion was shortly argued by L. C. Ashley for the petitioner, and James Tillinghast for the respondent;
    the former citing 3 Dan. Ch. Pract. 1801,1805.
   Ames, C. J.

The motion to strike out must prevail; the purpose of the statute in authorizing a claimant of this sort to proceed by petition in equity, being, to give him a summary remedy, without the incumbrance and delay of plea, answer, and replication. As the citation to the respondent, directed by the 10th section of ch. 150, Revised Statutes, requires him to appear “at the next term” after the filing of the petition, to show cause, if any he have, why the lien should not be allowed and enforced, without prescribing what shall be the appearance day of the term, and the 16th section directs the court, by themselves or a master, to inquire into the nature and amount of the claim if it shall appear to the court, by confession or on trial, that the petitioner or any other person, party to the proceeding, has a lien to be enforced, it may be proper for the court, by rule, to prescribe the day and mode of appearing, and what default of appearance shall amount to a confession. In the mean time, the practice will prevail, as hitherto, that an appearance may be entered at any time during the term, until, and at the time that the petition is called in order; and non-appearance at that time, when called upon to appear, be regarded as sufficient confession of lien by the owner of the land, &c., to enable the further inquiry.  