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 |
Simpson & James and Houston Bros., for complainants.
Wm Aubrey and Chas. H. Mayfield, for defendants.
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:
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 '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...
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Grether v. Wright
... ... the federal courts, as it was unknown to the practice of the ... [75 F. 744] ... court of chancery in England. Crouch v. Kerr, 38 F ... 549; Banks v. Manchester, 128 U.S. 244, 9 Sup.Ct ... 36; Travers v. Ross, 14 N.J.Eq. 254, 258; Winter ... v. Claitor, ... ...
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Goldman v. Smith
... ... the federal court, as it was unknown to the practice of the ... high court of chancery in England. Crouch v. Kerr, ... 38 F. 549; Banks v. Manchester, 128 U.S. 244, ... [93 F. 184] ... 9 Sup.Ct. 36; Travers v. Ross, 14 N.J.Eq. 254; ... Winter v ... ...
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Whittemore v. Patten
... ... whether it is sufficient or not. ' Brooks v. Byam, ... 1 Story, 296, 4 Fed.Cas. 258; Crouch v. Kerr, ... 38 F. 549; 1 Daniell, Ch.Pl.& Prac. (6th Ed.) p. 764 ... This ... rule, however, has necessarily undergone a modification, ... ...