PRACTICE REPORTS. SUPREME COURT. CORNELIUS L. ALLEN agt. SOLOMON ACKLEY and DAVID W. ACKLEY. This court has the power to allow a defendant to put in an answer, if he has neglected to answer within the twenty days prescribed by the code. At the adoption of the code this power of relief formed a part of the acknowledged jurisdiction of the court, which it derived from the common law, and it being highly beneficial, if not indispensable in the administration of justice, and there being no negative words in the code depriving the court of its exercise, held, that it was evident that the Legislature did not intend to deprive the court of the necessary and indispensable power of relieving parties in proper cases from the unjust and ruinous consequences of a failure to answer within the time required by the code. The case of extending the time for bringing an appeal is not analogous to the case of relieving from the effect of defaults in not pleading or answering in time. The power of appealing is derived wholly from the statute. The power of the court to relieve against a default in the progress of a cause, is derived from the common law. Motion to set Special Term, Washington county, February, 1849. aside judgment, and to allow defendants to put in answer. The summons and complaint were served on the defendants on the 29th and 30th of December, 1848, personally. The answer was served by depositing the same in the post office at Troy, on the 21st January, 1849, directed to the plaintiff. The answer was returned upon the ground that it was not served in time. Judgment was entered by the clerk on the 23d day of January, 1849. The defendant, D. W. Ackley, swears that he made no memorandum of the time of service of the summons and complaint, and when he sent word to his attorney of the commencement of the suit, he was under the impression that the time for answering expired on the 21st January, 1849. The attorney of the defendants states that when the summons and complaint were handed to him he was informed that they were served on the 1st January, 1849. The action was brought for services rendered by the plaintiff as solicitor and counsel for the defendants. J. HOLMES, for defendants. C. L. ALLEN, in pro. per. PAIGE, Justice. The question presented on this motion is, whether the court has power to allow the defendants to put in answer, they having neglected to answer within the twenty days prescribed by the code. It is insisted that as the code limits the time for putting in an answer, the court has no power to let the defendants in to make a defence. And has no power to enlarge the time within which an act is to be done, when such time is fixed by statute. (5 Wend. 136; Jackson v. Wickkam, 10 Paige, 616.) The code (sec. 107) provides that the summons shall require the defendant to answer the complaint and serve a copy of his answer, &c., within twenty days after the service of the summons, and § 121 declares that the answer must be served within twenty days after service of a copy of the complaint. Section 202 authorizes, in an action on contract for the recovery of money, a judgment to be entered by the clerk on the failure of the defendant to answer. If these provisions of the code deprive the court of the power to relieve the defendant from the consequences of a failure to answer within the time prescribed, in cases of mistake, inadvertency, surprise or excusable neglect, great hardship and injustice will be the result. The power of a court to relieve a defendant in such cases has always been deemed a salutary power; a power even indispensable in the administration of justice. No complaint was ever made of either the possession of this power by the court or of the manner of its exercise. I cannot believe, therefore, that the commissioners on practice and pleading, or the Legislature in reporting and adopting the code, intended to take this power from the court. Is the language of the code so clear and unambiguous that we are compelled to deduce from it an intention on the part of the Legislature to take from the court this power, which, as a part of its common law jurisdiction, it has possessed and exercised from time immemorial? In construing one part of the statute, the whole statute is to be considered; this is the best way of ascertaining the intention of the Legislature. The words and meaning of one part of a statute frequently lead to a knowledge of the sense of another. (Bac. Ab. Statute I., 2.) |