Fox v. Bennett

• Decision Date: 18 March 1892
• Parties: FOX v. BENNETT et al.
• Court: Maine Supreme Court

24 A. 878

84 Me. 338

FOX

v. BENNETT et al.

Supreme Judicial Court of Maine.

March 18, 1892.

(Official.)

Exceptions from supreme judicial court, York county.

Trover and conversion by Charles T. Fox, administrator de bonis non, against John Bennett and another, executors. To the ruling of the court refusing them leave to plead anew, upon their demurrer being overruled, defendants except. Exceptions sustained.

Fox & Gentleman and G. F. Clifford, for plaintiff.

Fairfield & Moore, tor defendants.

EMERY, J. This was an action against two defendants as executors. The writ was served on only one defendant before entry, and was entered at the return terra, when that defendant appeared. At the return term the plaintiff obtained an order of notice upon the other defendant to appear at the then next term. This notice was served upon the other defendant, and he appeared at the then next term, as required by the order.

At this latter term, both defendants having appeared, their attorney desired to demur to the declaration, and claimed that under the above circumstances the then term was the first term for that purpose; and that he could plead anew if the demurrer should be overruled. But, to guard against the possibility that the court might rule otherwise, be stipulated "for leave to plead anew, upon payment of costs, if the demurrer should be overruled." The court granted such leave, as stipulated for, plaintiff's attorney being present and making no objection; and the attorney for the defendants filed a general demurrer to the declaration.

The demurrer was then joined and presented to the court, and overruled. The defendants' attorney thereupon paid into court the plaintiff's costs, and tendered a plea of the general issue, with a brief statement, under the stipulated leave to plead anew; and also moved for leave to file the same. The court ruled, as matter of law, that it had no discretionary power, under the circumstances, to allow the defendants to plead anew, and that it could not, if it would, receive the plea. The defendants excepted.

Without the stipulation at the time of filing the demurrer for such leave to plead anew, the court might have had no power to permit a plea to be filed after demurrer overruled, assuming that the term at which it was filed was the second term. Fryeburg v. Brownfield, 68 Me. 145. Without passing upon the question whether the demurrer was filed at the first term, we think that, under the stipulation, the court had the power to receive the plea in its discretion.

The attorney for the defendants was desirous of having the sufficiency of the declaration determined before going to trial, and yet was apprehensive that the court might not only overrule bis demurrer, but also rule...