
    Cook’s Appeals. [Cook v. Stutzman.] [Cook v. Brown.] Pickworth’s Appeal. [Pickworth v. Stutzman.]
    A bill in equity was filed in August, 1887, and a decree pro confesso for want of a plea, answer or demurrer was regularly entered in October, 1887. In December following, an answer, denying some of tbe allegations of tbe bill, was filed by one of the defendants, but whether by leave of court or not did not appear. A few days thereafter, the defendants moved to strike off the decree pro confesso. Without disposing of this motion or taking any other action, the court, on Jan. 6, 1888, entered a decree dismissing the bill. Held that the decree dismissing the bill was manifestly erroneous and contrary to equity practice, and that the proceedings should therefore be reversed and the records remitted with instructions to proceed according to equity practice.
    Oct. 8, 1888.
    Appeals, Nos. 52, 53 and 54, Oct. T. 1888, from decrees of O. P. Cambria Co., dismissing three bills in equity, as follows: 1, Mary J. Cook against George ~W. Stutzman et al., at Sept. T. 1887, No. 4; 2, Mary J. Cook against John J. Brown et al., at Sept. T. 1887, No. 3; and, 3, Eliza Pickworth against Geo. W. Stutzman et al., at Sept. T. 1887, No. 5. Green and Hand, JJ., absent.
    The facts of Cook’s Appeal, No. 52, Oct. T. 1888, appear as follows by the record, before Johnston, P. J.:
    On Aug. 29, 1887, the bill in equity in this case was filed alleging that, on Oct. 26, 1885, Mary J. Cook and her husband, ¥m. F. Cook, executed a deed of assignment for the benefit of creditors to George W. Stutzman, and further alleging that the assignment was made by reason of false and fraudulent representations made to her, and praying that the assignment be declared null and void. Sept. 15, 1887, rule on defendants to plead, answer or demur within 30 days. Sept. 20, served on defendants’ counsel, who had entered an appearance. On Oct. 22, 1887, “judgment pro confesso ” was entered for complainant, for want of a plea, answer or demurrer. On Dec. 5, 1887, an answer was filed by one of the defendants, but the record does not show whether this was done by leave of court or not. On Dec. 16, 1887, the court granted a rule to show cause why the judgment pro confesso should not be stricken off. It did not appear by the record that this rule was ever served upon plaintiff or her counsel. On Jan. 6, 1888, the court entered the following decree: “ Bill dismissed at cost of plaintiff.”
    The facts of Cook’s Appeal, No. 54, Oct. T. 1888, appear as follows by the record:
    On Aug. 29, 1887, the bill in equity was filed alleging that on April 21, 1885, Mary J. Cook and ¥m. F. Cook, her husband, executed a mortgage to John J. Brown, and further alleging that she had not signed the mortgage of her own free will and that she had not been examined separately and apart from her husband by the justice who took the acknowledgment and praying that the mortgage be declared null and void. The subsequent proceedings were the same as in No. 52.
    
      The facts of Pickworth’s Appeal, No. 53, Oct. T. 1887, appear as follows by the record:
    On Aug. 29, 1887, the bill in equity was filed alleging that Eliza Pickworth was the surety on the bond given by Mary J. Cook and husband to John J. Brown on April 21, 1885. On Oct. 23, 1885, she executed a deed of assignment to George W. Stutzman for the benefit of creditors. The bill prayed that this assignment should be set aside, alleging fraud. The subsequent proceedings were the same as in Nos. 52 and 54.
    It is stated by the appellee that after the assignments, in Nos. 52 and 53, the assignee sold the properties and made return to court. The assignors, appellants, then instituted proceedings to set aside the assignment. Testimony was taken, the case heard and decided against appellees. The' court then directed a re-sale, which was made, and returned to court. These bills were then filed again seeking to set aside the assignments. These facts, however, do not appear by the pleadings or record in these cases.
    
      The assignment of error in the several cases specified the decree of the court dismissing the bills, quoting it.
    
      A. H. Coffroth, with him W. H. Ruppel, Wm. H. Koontz, C. L. Dick and Robert S. Murphy, for appellants.
    The court below was clearly in error in dismissing the bill prior to a hearing. This case is ruled by Buck Mountain Coal Co.’s Ap., 5 W. N. C. 309.
    
      Alfred Ashton, for appellees.
    The cases had been previously disposed of. The court knew all the facts.
   Stebrett, J.,

in Cook’s Appeal, Oct. T. 1887, No. 52, Oct. 22, 1888. — The error complained of is apparent on the face of the record. The bill was filed in August, 1887, and the cause was so-proceeded in that a decree (inaccurately called “ judgment ”) pro confesso, for want of a plea, answer, or demurrer,” was regularly entered October, 1887. In December following, an answer denying some of the allegations of the bill was filed by one of the defendants, but whether by leave of court or not does not appear. A few days thereafter, defendants moved to strike off the decree pro confesso. Without disposing of that motion or taking any other action in the premises, the court, on January 6, 1888, entered a decree dismissing the bill at plaintiffs’ costs. The action thus inconsiderately taken, without anything on the record to justify it, is the subject of complaint in the only specification of error before us.

The merits of the bill are not before us, and cannot now be considered. In view of the pleadings, state of the records, etc., the decree complained of is so manifestly erroneous and contrary to equity practice that further consideration of the subject is unnecessary. Equity Buies; Buck Mountain Coal Co.’s Appeal, 5 W. N. C. 309.

Decree reversed at appellees’ costs, and record remitted with instructions to proceed according to equity practice.

Sterrett, J., in Cook’s Appeal, No. 54, Oct. 22, 1888. — This, case was argued with Mary J. Cook’s Appeal, No. 52 of this Term-The specification of error and facts of which it is predicated are substantially the same in both; and for reasons -briefly given in opinion just filed in that case, the decree dismissing the bill at plaintiffs’ costs must be reversed.

Decree reversed at appellees’ costs, and record remitted, with; instructions to proceed according to equity practice.

Sterrett, J., in Pickworth’s Appeal, No. 53, Oct. 22, 1888.— This case was argued with Mary J. Cook’s Appeal, No. 52 of this Term. The specification of error and facts of which it is predicated are substantially the same in both. Por reasons briefly given in opinion just filed in that case, the decree dismissing the bill at plaintiffs’ costs must be reversed.

Decree reversed at appellees’ costs, and record remitted, with instructions to proceed according to equity practice.  