Crouch v. Kerr

• Decision Date: 09 May 1889
• Citation: 38 F. 549
• Parties: CROUCH et al. v. KERR et al.
• Court: U.S. District Court — Western District of Texas

38 F. 549

CROUCH et al. v. KERR et al.

United States Circuit Court, W.D. Texas, San Antonio Division.

May 9, 1889

Simpson & James and Houston Bros., for complainants.

Wm Aubrey and Chas. H. Mayfield, for defendants.

MAXEY J.

The complainants, B. L. Crouch, J. T. Lytle, T. M. McDaniel and Edward Rutledge, filed their bill in this suit on the 1st day of December, 1885, praying for an injunction to restrain the defendant James D. Kerr and his attorneys from the further prosecution of a suit of trespass to try title, instituted by Kerr on the law side of the court, to recover of complainants certain real estate. Upon motion duly presented by complainants, and notice to the defendants, a temporary injunction was issued by my predecessor. Following the injunction, the defendants filed a demurrer to the bill which, upon consideration, was overruled, and they were required by order of the court to answer the bill 'upon its merits on the August rule-day, A.D. 1886. ' The answer was filed on the 6th day of September following without objection on the part of complainants as to the time of filing. A paper styled 'demurrer to answer' was interposed by complainants, and filed August 1, 1887. This demurrer was not acted upon by my predecessor, and is now submitted for determination. That the demurrer may be properly understood, the grounds thereof will be inserted in the language of the pleader. They are as follows:

'Complainants, by protestation, and confessing any or all of the matters and things in the answer of defendants contained to be true, in such manner and form as therein alleged, do demur to said answer, and for cause of demurrer say that the matters and things averred and exhibited by said answer show no legal or equitable defense to the bill of complaint; that said answer discloses that complainants are entitled to the relief prayed for in their bill of complaint. And that they, the complainants, cannot now be required to file replication to said answer.'

Whether the answer presents a meritorious defense to the bill will not at this time be decided, as it is evident that the rules of correct equity practice forbid a determination of that question up n a demurrer to an answer. Such a method of testing the validity of an answer is permissible under the rules of pleading and practice as adopted by the courts of this state, but those rules are inapplicable to this court sitting as a court of equity. Betts v. Lewis, 19 How. 72, 73. If an answer be insufficient, exceptions may be taken to it, 'which exceptions are always in writing, stating the parts of the bill which the plaintiff alleges are not answered, and praying that the defendant may in such respects put in a further and full answer to the bill. ' Story, Eq. Pl. (9th Ed.) Sec. 864; 1 Daniell, Ch. (5th Ed.)c. 17, Sec. 4, p. 760; Lube, Eq. Sec. 2, subd. 65, p. 72; Heard, Eq. Pl. 98, 99; Brooks v. Byam, 1 Story, 300 et seq.; Equity Rules, 61-65. Or, if the answer sets up no legal defense, and the material facts are admitted, the complainant has the option, and the proper course is, to set the cause down upon bill and answer. Banks v. Manchester, 128 U.S. 251, 9 S.Ct. 36; Travers v. Ross, 14 N.J.Eq. 257; Heard, Eq. Pl. 83; Story, Eq. Pl. (9th Ed.) Sec. 456; Edwards v. Drake, 15 Fla. 666; 1 Daniell, Ch. (5th Ed.)c. 21, p. 828. When the cause is set down for hearing on bill and answer 'the case is put at issue, the answer becomes evidence, (Equity Rule 41, cl. 2,) and the only evidence the defendant needs, for it must be taken as true in all respects. * * * There is therefore no necessity for a replication, or for the taking of testimony. The setting the case down for hearing on bill and answer is, in effect, a submission of the cause to the court by the complainant on the contention that he is entitled to the decree prayed for in his bill upon the admissions, and notwithstanding the denials of the answer. ' Reynolds v. Bank, 112 U.S. 409, 5 S.Ct. 213; 1 Daniell, Ch. (5th Ed.)c. 21, pp. 828, 829. It is stated by Mr. Daniell that a cause is now, however, rarely heard on bill and answer. Id. 829.

Failing to set the clause down for hearing on bill and answer, or to except to the answer, it is the duty of complainant to file...